Relational Liberalism: Democratic Co-Authorship in a Pluralistic World 3031227425, 9783031227424

Table of contents :
Acknowledgments
Contents
Chapter 1: Introduction
1.1 Liberal Legitimacy
1.2 Disagreement as raison d’être of Democracy
1.3 The Justificatory Dilemma of Liberalism
1.4 An Epistemic Reading of the Justificatory Dilemma
1.5 Justification for Whom?
1.6 Ideal vs Nonideal Theory
References
Chapter 2: Political Legitimacy Under Epistemic Constraints
2.1 Rawls’s Political Turn
2.1.1 Continuism vs Discontinuism
2.1.2 Freestanding Justification and Overlapping Consensus
2.1.3 A Multi-layered Justificatory Procedure
2.1.4 Stability in the Face of Deep Disagreement
2.1.5 Epistemic Abstinence
2.2 Rescuing Epistemology: A Coherentist Theory of Public Justification
2.2.1 A Virtuous Circularity
2.2.2 How to Reply to the No-Contact-With-Reality-Objection
2.2.3 Coherentism and the Intrinsic Flexibility of Collective Justificatory Processes
2.3 The Method of Reflective Equilibrium
2.3.1 Nelson Goodman and the Riddle of Induction
2.3.2 The Role of Reflective Equilibrium in the Rawlsian Framework
2.3.3 A Deliberative Interpretation of Reflective Equilibrium
2.4 Wide Reflective Equilibrium in the Real World
2.4.1 Narrow and Wide Reflective Equilibrium
2.4.2 Strong Coherentism: Initial Credibility and the Epistemic Relevance of Fixed Points
2.4.3 Criticisms of the Method: A Disguised form of Intuitionism or a Too Relativistic Process?
References
Chapter 3: An Epistemic Reading of the Ideal of Co-authorship
3.1 For a Modest Epistemic Paradigm
3.1.1 The Doxastic Presupposition
3.1.2 The Fallibilistic Clause
3.1.3 The Appraisal of Evidence: An Intrinsically Opaque Process
3.1.4 Objectivity in Practical Reasoning
3.1.5 The Burdens of Judgment
3.2 Political Epistemology
3.2.1 Reasonable Disagreement in the Political Domain
3.2.2 Bite-The-Bullet or Stick-To-My-Own-Guns
3.2.3 The Deliberative Constraint of Intellectual Modesty
3.3 Reasonableness in Practice
3.3.1 The Civic Virtue of Reasonableness
3.3.2 The Epistemic Dimension of Reasonableness and the Notion of Opacity Respect
3.3.3 Epistemic Deference and Inconclusive Collective Reasoning
References
Chapter 4: Justification Under Nonideal Circumstances: Reflective Agreement and Relational Liberalism
4.1 Anti-perfectionist Political Liberalism
4.1.1 Two Models of Political Liberalism
4.1.2 Foundational and Justificatory Disagreement
4.1.3 Overlapping Consensus: The Input of the Whole Justificatory Procedure?
4.2 The Background Normative Framework
4.2.1 Coherentism and Overlapping Consensus: A Happy Liaison
4.2.2 Ideal Justification: Two Forms of Reflective Equilibrium
4.3 Justification Under Nonideal Circumstances
4.3.1 The Nonideal Phase of the Justificatory Paradigm
4.3.2 Sharing a Normative Framework: The Notion of Reflective Agreement
4.3.3 Liberalism-Frame and Liberalism-Painting: How to Give Priority to Democratic Participation
References
Chapter 5: The Ideal of Public Justification Revisited
5.1 The Notion of Public Reason
5.1.1 Public Justification and the Duty of Civility
5.1.2 The Deliberative Dimension of Public Reason
5.1.3 The Sincerity Requirement
5.2 Public Justification and the Reflexivity Requirement
5.2.1 Two Requirements of Public Justification
5.2.2 The Reconciling Function of Public Justification
5.2.3 Is there a Possibility to Publicly Justify the Public Justification Principle?
5.3 Justificatory Liberalism
5.3.1 The Libertarian Clause
5.3.2 Open Justification as a Weak Externalist View
5.3.3 Justificatory Populism
5.3.4 How to Maintain Integrity: The Distinction Between Intelligible and Accessible Reasons
5.3.5 Victorious and Undefeated Public Justifications
5.3.6 The Adjudicating Function of Public Reason
References
Chapter 6: Compromises for a Pluralistic World
6.1 Why We Need Compromise for Democratic Decisions
6.1.1 Epistemic and Pragmatic Reasons in Favor of Compromise
6.1.2 A Voluntaristic Reading of Compromise
6.2 Against a Winner-Takes-All Model of Democracy
6.2.1 Pragmatic Compromise
6.2.2 Principled Compromise
6.2.3 The Normative Assumptions of Compromise
6.3 Compromise in Nonideal Circumstances
6.3.1 The Role of Power and Structural Forms of Injustice
6.3.2 How to Fight the Tyranny of the Articulate
References
Chapter 7: A Case Study: Extending Marriage Rights to Same-Sex Couples
7.1 Political Conflicts Over Symbolic Public Space
7.1.1 Marriage Equality and the Public Sphere
7.1.2 Symbolic Public Space as a Public Good
7.1.3 When the Structural Asymmetries Kick in: Arguments Against Marriage Equality
7.2 The Adjudicative Role of Constitutional Courts
7.2.1 Judicial Review: The Legal Case for Marriage Equality in the U.S.
7.2.2 The Countermajoritarian Difficulty: Backlashes to the Courts’ Decisions
7.3 An Adequate Compromise? The Case of Civil Unions in Italy
References
Sitography
Chapter 8: Conclusion
Index

Citation preview

Philosophy and Politics - Critical Explorations

Federica Liveriero

Relational Liberalism

Democratic Co-Authorship in a Pluralistic World

Philosophy and Politics - Critical Explorations Volume 24

Series Editors David M. Rasmussen, Boston College, Chestnut Hill, MA, USA Alessandro Ferrara, Dipartimento di Storia, University of Rome ‘Tor Vergata’, Rome, Italy Editorial Board Members Abdullah An-Na’im, Charles Howard Candler Professor of Law, Emory University, Atlanta, USA Bruce Ackerman, Sterling Professor of Law, Yale University, New Haven, CT, USA Robert Audi, O’Brien Professor of Philosophy at the University of Notre Dame, Notre Dame, IN, USA Seyla Benhabib, Eugene Meyer Professor for Political Science and Philosophy, Yale University, New Haven, CT, USA Samuel Freeman, Avalon Professor in the Humanities, University of Pennsylvania, Philadelphia, PA, USA Jürgen Habermas, Professor Emeritus, Goethe-University, Frankfurt am Main, Frankfurt, Bayern, Germany Axel Honneth, Goethe-University, Frankfurt am Main, Germany and Columbia University, New York, USA Erin Kelly, Professor of Philosophy, Tufts University, Medford, MA, USA Charles Larmore, W. Duncan MacMillan Family Professor in the Humanities, Brown University, Providence, RI, USA Frank Michelman, Professor Emeritus, Harvard University, Cambridge, MA, USA Tong Shijun, Professor of Philosophy, East China Normal University, Shanghai, China Charles Taylor, Professor Emeritus, McGill University, Montreal, QC, Canada Michael Walzer, Professor Emeritus, Institute of Advanced Study, Princeton, NJ, USA

The purpose of Philosophy and Politics - Critical Explorations is to publish high quality volumes that reflect original research pursued at the juncture of philosophy and politics. Over the past 20 years new important areas of inquiry at the crossroads of philosophy and politics have undergone impressive developments or have emerged anew. Among these, new approaches to human rights, transitional justice, religion and politics and especially the challenges of a post-secular society, global justice, public reason, global constitutionalism, multiple democracies, political liberalism and deliberative democracy can be included. Philosophy and Politics Critical Explorations addresses each and any of these interrelated yet distinct fields as valuable manuscripts and proposal become available, with the aim of both being the forum where single breakthrough studies in one specific subject can be published and at the same time the areas of overlap and the intersecting themes across the various areas can be composed in the coherent image of a highly dynamic disciplinary continent. Some of the studies published are bold theoretical explorations of one specific theme, and thus primarily addressed to specialists, whereas others are suitable for a broader readership and possibly for wide adoption in graduate courses. The series includes monographs focusing on a specific topic, as well as collections of articles covering a theme or collections of articles by one author. Contributions to this series come from scholars on every continent and from a variety of scholarly orientations.

Federica Liveriero

Relational Liberalism Democratic Co-Authorship in a Pluralistic World

Federica Liveriero Department of Political and Social Sciences University of Pavia Pavia, Italy

ISSN 2352-8370     ISSN 2352-8389 (electronic) Philosophy and Politics - Critical Explorations ISBN 978-3-031-22742-4    ISBN 978-3-031-22743-1 (eBook) https://doi.org/10.1007/978-3-031-22743-1 © Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To R.C., for everything

Well, there’s things that never will be right, I know And things need changing everywhere you go But ’til we start to make a move to make a few things right You’ll never see me wear a suit of white Ah, I’d love to wear a rainbow every day And tell the world that everything’s okay But I’ll try to carry off a little darkness on my back Until things are brighter, I’m the Man in Black Johnny Cash, “Man in Black”*

* The Man in Black Words and Music by John R. Cash Copyright © 1971 Song Of Cash, Inc. Copyright Renewed All Rights Administered by BMG Rights Management (US) LLC International Copyright Secured. All Rights Reserved Reprinted by permission of Hal Leonard Europe Ltd. (UK) / Hal Leonard Europe BV (Italy). vii

Acknowledgments

This book is the culmination of research I’ve conducted over the last ten years, going back to my graduate studies. In these years, I primarily called three institutions my home: the Department of Philosophy at the University of Piemonte Orientale “Amedeo Avogadro” in Vercelli, the Department of Political Science at LUISS University in Rome, and the Department of Political and Social Science at the University of Pavia. Some preliminary parts of the research for this book were carried out while holding visiting positions abroad. I am grateful to Boston College, the University of Massachusetts, Lowell, and the University of California, San Diego for hosting me. I owe a big intellectual debt to David Rasmussen and David Brink for inviting me as a visiting scholar and for providing fundamental feedback while I wrote my PhD thesis. I presented some of the arguments that I defend in this book in a preliminary form in previous publications, especially in Decisioni pubbliche e disaccordo. Giustificazioni e compromessi tra pari epistemici, LUISS University Press, 2017. In Chap. 2, I refer to some arguments from “Does Epistemology Matter? Political Legitimacy in the Face of Disagreement,” LPF Annals, n. 2, 2018: 1–42 (ISBN 978-88-94960-00-6, © Centro Einaudi). In Chap. 3, some passages build on arguments presented in: “Epistemic Dimension of Reasonableness,” Philosophy and Social Criticism, 2015, 41 (6), pp.  517–535 and “Reasonableness as a Virtue of Citizenship and the Opacity Respect Requirement,” Philosophy and Social Criticism, 46 (8), 2020: 901–921 (DOI: 10.1177/0191453720903492, © Sage Publication). In Chap. 6, Sect. 6.3, my analysis partially overlaps with some of the arguments in my paper “Epistemic Injustice in the Political Domain: Powerless Citizens and Institutional Reform,” Ethical Theory and Moral Practice, 23(5), 2020: 797–813 (DOI: 10.1007/s10677-020-10097-w, © Springer Nature). Chapter 7 is the development of arguments previously presented in “Open Negotiation: The Case of Same-sex Marriage,” LPF Annals, n. 1, 2015: 1–27 (ISBN 978-88-943179-7-8, © Centro Einaudi). The overlap between this book and these previous works is limited and has been acknowledged in references and footnotes when appropriate.

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Acknowledgments

I presented a nearly final draft of the manuscript in a weekly seminar organized by the University of Rijeka Fellowship of Public Reason Group. The friendly and professional environment provided me with wonderful discussions of my main ideas, pushing me to refine some of the central concepts and arguments that I defend in this book. I’m indebted to Elvio Baccarini, Kristina Lekić Barunčić, and the rest of the public reason gang for this great opportunity. I also want to thank audiences at workshops and seminars in Amsterdam, Belgrade, Boston, Braga, Bucharest, Canterbury, Cologne, Copenhagen, Genoa, Leeds, Manchester, Milan, Paris, Pavia, Pistoia, Rome, San Diego, and Turin for valuable feedback and criticism. In addition to in-person exchanges at seminars, I have greatly benefited from written comments from colleagues. I am especially indebted to Enrico Biale, Giulia Bistagnino, Ian Carter, Emanuela Ceva, Alessandro Ferrara, Elisabetta Galeotti, Pietro Maffettone, Davide Pala, and Amelia Wirts. For valuable linguistic assistance, I am grateful to Mark Rogers. On a personal note, I have been lucky to grow up – both personally and philosophically – in a very friendly and lively academic environment. Along the way, I have always been provided with advice, feedback, and support, which continues to give me a sense of belonging to a philosophical community. In this regard, I think especially of: Sara Amighetti, Marilena Andronico, Robert Audi, Elvio Baccarini, Gabriele Badano, Carla Bagnoli, Federica Berdini, Antonella Besussi, Matteo Bianchin, Chiara Biano, Sofia Bonicalzi, Carlo Burelli, Laura Caponetto, Ian Carter, Bianca Cepollaro, Emanuela Ceva, Francesco Chiesa, Mario De Caro, Corrado Del Bò, Chiara Destri, Margarita Estevez-Abe, Greta Favara, Pasquale Femia, Sandro Ferrara, Maurizio Ferrera, Maria Paola Ferretti, Giacomo Floris, Corrado Fumagalli, Valentina Gentile, Mohammed Hashas, Carol Hay, Samuele Iaquinto, Elena Irrera, John Kaag, Volker Kaul, Micheal Kebede, Manuhar Komar, Zhuoyao Li, Sebastiano Maffettone, Beatrice Magni, Giacomo Marossi, Tim Meijers, Cristina Meini, Domenico Melidoro, Glyn Morgan, Alasia Nuti, Valeria Ottonelli, Pamela Pansardi, Francesca Pasquali, Gianfranco Pellegrino, Mauro Piras, Giulia Piredda, Nicola Riva, Enzo Rossi, Anna Chiara Rotondo, Roberta Sala, Ingrid Salvatore, Daniele Santoro, Andrea Sereni, Sarah Songhorian, Cecilia Sottilotta, Vera Tripodi, Paul Van Rooy, Garvan Walshe, and Federico Zuolo. In these years, some colleagues have become very good friends, and our mutual affection is as important as our mutual professional esteem. My academic life would have not been the same without our sharing of projects, hopes, difficulties, and laughs. Thank you to Enrico Biale, Giulia Bistagnino, Michele Bocchiola, Pietro Maffettone, José Mendoza (The GM), Davide Pala, Chiara Testino, and Amelia Wirts. Thank you to NCS, my soccer stadium tribe, because over the years have allowed me to keep a balance between the seriousness of academic research and passions that make life worth living (and the heart beat faster). Thank you to Betta, Max, and Senije for always sticking around, in good and bad times alike.

Acknowledgments

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Thank you to Vic, Hayley, and Will for being my family on the other side of the pond, as Vic would say. Thank you to Albi and Manu, for the endless support and affection and for setting a wonderful example of resilience and what it is to have a moral compass. Elisabetta Galeotti is the best mentor anyone could ever ask for. She constantly pushes me to work harder and to think more sharply and analytically. She is also a true example of the importance of not taking anything too seriously, especially oneself, and of fighting the battles worth fighting. I would be much less of a person if she weren’t in my life. R.C. had been my partner in crime all these years, surrounding me with endless wit, irony, curiosity, and adventures, and always making our daily routine exciting. This book is dedicated to his memory.

Contents

1

Introduction����������������������������������������������������������������������������������������������    1 1.1 Liberal Legitimacy����������������������������������������������������������������������������    2 1.2 Disagreement as raison d’être of Democracy����������������������������������    3 1.3 The Justificatory Dilemma of Liberalism ����������������������������������������    5 1.4 An Epistemic Reading of the Justificatory Dilemma������������������������    8 1.5 Justification for Whom?��������������������������������������������������������������������   10 1.6 Ideal vs Nonideal Theory������������������������������������������������������������������   13 References��������������������������������������������������������������������������������������������������   20

2

 olitical Legitimacy Under Epistemic Constraints������������������������������   23 P 2.1 Rawls’s Political Turn ����������������������������������������������������������������������   24 2.1.1 Continuism vs Discontinuism����������������������������������������������   27 2.1.2 Freestanding Justification and Overlapping Consensus��������   30 2.1.3 A Multi-layered Justificatory Procedure������������������������������   33 2.1.4 Stability in the Face of Deep Disagreement ������������������������   42 2.1.5 Epistemic Abstinence������������������������������������������������������������   49 2.2 Rescuing Epistemology: A Coherentist Theory of Public Justification ��������������������������������������������������������������������������������������   52 2.2.1 A Virtuous Circularity����������������������������������������������������������   53 2.2.2 How to Reply to the No-Contact-With-Reality-Objection�����  56 2.2.3 Coherentism and the Intrinsic Flexibility of Collective Justificatory Processes������������������������������������   60 2.3 The Method of Reflective Equilibrium ��������������������������������������������   62 2.3.1 Nelson Goodman and the Riddle of Induction ��������������������   63 2.3.2 The Role of Reflective Equilibrium in the Rawlsian Framework����������������������������������������������������������������������������   65 2.3.3 A Deliberative Interpretation of Reflective Equilibrium������   70 2.4 Wide Reflective Equilibrium in the Real World�������������������������������   72 2.4.1 Narrow and Wide Reflective Equilibrium����������������������������   72

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Contents

2.4.2 Strong Coherentism: Initial Credibility and the Epistemic Relevance of Fixed Points ����������������������   74 2.4.3 Criticisms of the Method: A Disguised form of Intuitionism or a Too Relativistic Process?����������������������   77 References��������������������������������������������������������������������������������������������������   80 3

 n Epistemic Reading of the Ideal of Co-authorship��������������������������   85 A 3.1 For a Modest Epistemic Paradigm����������������������������������������������������   87 3.1.1 The Doxastic Presupposition������������������������������������������������   87 3.1.2 The Fallibilistic Clause ��������������������������������������������������������   91 3.1.3 The Appraisal of Evidence: An Intrinsically Opaque Process��������������������������������������������������������������������   93 3.1.4 Objectivity in Practical Reasoning����������������������������������������   95 3.1.5 The Burdens of Judgment ����������������������������������������������������   99 3.2 Political Epistemology����������������������������������������������������������������������  101 3.2.1 Reasonable Disagreement in the Political Domain��������������  101 3.2.2 Bite-The-Bullet or Stick-To-My-Own-Guns������������������������  106 3.2.3 The Deliberative Constraint of Intellectual Modesty������������  111 3.3 Reasonableness in Practice ��������������������������������������������������������������  114 3.3.1 The Civic Virtue of Reasonableness ������������������������������������  114 3.3.2 The Epistemic Dimension of Reasonableness and the Notion of Opacity Respect ��������������������������������������  119 3.3.3 Epistemic Deference and Inconclusive Collective Reasoning������������������������������������������������������������  123 References��������������������������������������������������������������������������������������������������  128

4

Justification Under Nonideal Circumstances: Reflective Agreement and Relational Liberalism ��������������������������������������������������  133 4.1 Anti-perfectionist Political Liberalism ��������������������������������������������  137 4.1.1 Two Models of Political Liberalism�������������������������������������  137 4.1.2 Foundational and Justificatory Disagreement����������������������  141 4.1.3 Overlapping Consensus: The Input of the Whole Justificatory Procedure?��������������������������������������������������������  143 4.2 The Background Normative Framework������������������������������������������  147 4.2.1 Coherentism and Overlapping Consensus: A Happy Liaison ������������������������������������������������������������������  150 4.2.2 Ideal Justification: Two Forms of Reflective Equilibrium������������������������������������������������������  151 4.3 Justification Under Nonideal Circumstances������������������������������������  156 4.3.1 The Nonideal Phase of the Justificatory Paradigm ��������������  157 4.3.2 Sharing a Normative Framework: The Notion of Reflective Agreement��������������������������������������������������������  159 4.3.3 Liberalism-Frame and Liberalism-Painting: How to Give Priority to Democratic Participation����������������  165 References��������������������������������������������������������������������������������������������������  169

Contents

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5

 he Ideal of Public Justification Revisited��������������������������������������������  171 T 5.1 The Notion of Public Reason������������������������������������������������������������  173 5.1.1 Public Justification and the Duty of Civility������������������������  173 5.1.2 The Deliberative Dimension of Public Reason��������������������  175 5.1.3 The Sincerity Requirement ��������������������������������������������������  178 5.2 Public Justification and the Reflexivity Requirement ����������������������  181 5.2.1 Two Requirements of Public Justification����������������������������  182 5.2.2 The Reconciling Function of Public Justification����������������  184 5.2.3 Is there a Possibility to Publicly Justify the Public Justification Principle?����������������������������������������������������������  185 5.3 Justificatory Liberalism��������������������������������������������������������������������  187 5.3.1 The Libertarian Clause����������������������������������������������������������  189 5.3.2 Open Justification as a Weak Externalist View ��������������������  192 5.3.3 Justificatory Populism����������������������������������������������������������  195 5.3.4 How to Maintain Integrity: The Distinction Between Intelligible and Accessible Reasons����������������������  198 5.3.5 Victorious and Undefeated Public Justifications������������������  202 5.3.6 The Adjudicating Function of Public Reason ����������������������  204 References��������������������������������������������������������������������������������������������������  207

6

 ompromises for a Pluralistic World����������������������������������������������������  211 C 6.1 Why We Need Compromise for Democratic Decisions ������������������  214 6.1.1 Epistemic and Pragmatic Reasons in Favor of Compromise���������������������������������������������������������������������  215 6.1.2 A Voluntaristic Reading of Compromise������������������������������  220 6.2 Against a Winner-Takes-All Model of Democracy��������������������������  223 6.2.1 Pragmatic Compromise��������������������������������������������������������  223 6.2.2 Principled Compromise��������������������������������������������������������  225 6.2.3 The Normative Assumptions of Compromise����������������������  230 6.3 Compromise in Nonideal Circumstances������������������������������������������  234 6.3.1 The Role of Power and Structural Forms of Injustice ����������������������������������������������������������������  234 6.3.2 How to Fight the Tyranny of the Articulate��������������������������  237 References��������������������������������������������������������������������������������������������������  242

7

A Case Study: Extending Marriage Rights to Same-Sex Couples��������������������������������������������������������������������������������  247 7.1 Political Conflicts Over Symbolic Public Space������������������������������  250 7.1.1 Marriage Equality and the Public Sphere ����������������������������  251 7.1.2 Symbolic Public Space as a Public Good ����������������������������  253 7.1.3 When the Structural Asymmetries Kick in: Arguments Against Marriage Equality ��������������������������������  258 7.2 The Adjudicative Role of Constitutional Courts������������������������������  263 7.2.1 Judicial Review: The Legal Case for Marriage Equality in the U.S.��������������������������������������������������������������  264

xvi

Contents

7.2.2 The Countermajoritarian Difficulty: Backlashes to the Courts’ Decisions��������������������������������������������������������  269 7.3 An Adequate Compromise? The Case of Civil Unions in Italy��������  273 References��������������������������������������������������������������������������������������������������  277 8

Conclusion������������������������������������������������������������������������������������������������  281

Index������������������������������������������������������������������������������������������������������������������  289

Chapter 1

Introduction

Defenses of political legitimacy are of two kinds: those which discover a possible convergence of rational support for certain institutions from the separate motivational standpoints of distinct individuals; and those which seek a common standpoint that everyone can occupy, which guarantees agreement on what is acceptable. Thomas Nagel (1987: 218, emphasis in original).

Abstract  In this introductory chapter I lay out the general outline of the book. I introduce the traditional notion of liberal legitimacy and observe that traditional approaches of liberal legitimacy tend to fall into a justificatory dilemma. Liberal theories ought to find a balance between two fundamental desiderata: (i) providing normative arguments in support of the legitimacy of a specific political conception; (ii) guaranteeing actual endorsement to political principles and social norms by real-world individuals. I illustrate that these two goals often are in tension with one another, especially in highly conflictual contexts as contemporary multicultural societies. In the chapter I suggest that the only winning strategy to satisfy both desiderata, while being loyal to the overall liberal project, is to clearly establish that these desiderata can be satisfied, though not simultaneously, by implementing different justificatory strategies. According to this twofold model of legitimacy I shall defend in this work, a normative approach of justification for democratic decisions cannot rely solely on standards that are drawn from an idealized analysis, because there is another essential goal, that is, developing a theory that proves also politically efficacious, that cannot be satisfied with the same strategy. This means that a liberal account of legitimate political authority should look for establishing political procedures of decision-making, deliberative settings, ex-post forms of contestation, checks and balances rules that are both normatively justifiable and also efficacious enough to overcome indeterminacy and to be stably supported by the majority of the members of the polity. Keywords  Liberal legitimacy · Disagreement · Stability for the right reasons · Ideal and nonideal theory · Justificatory constituency © Springer Nature Switzerland AG 2023 F. Liveriero, Relational Liberalism, Philosophy and Politics - Critical Explorations 24, https://doi.org/10.1007/978-3-031-22743-1_1

1

2

1 Introduction

1.1 Liberal Legitimacy Political philosophy is a branch of practical philosophy that focuses on a specific aspect of human interactions primarily, that is, investigating different attempts to guarantee legitimacy to political institutions and to coercive acts imposed by these institutions. A consistent and exhaustive political conception should also provide us with an adequate illustration of the kind of citizenship bonds individuals share when they are members of the same demos. Since the political philosophy project is intrinsically an intersubjective enterprise, a very important aspect of normative political theory is establishing adequate procedures of public justification for political conceptions and decisions. Against this background, in this book my main goal is to propose a renewed version of the paradigm of legitimacy for political authority in democratic settings. This is a widely debated topic in the literature, being a properly foundational aspect of political philosophy as a discipline. Ultimately, my goal is to propose a justificatory framework that I argue is adequate to guide actual decision-­making processes and avoid indeterminacy (guidance), to define standards that everyone has an equal opportunity to fulfill (inclusion), and to grant that citizens exercise their reflexive control over the whole democratic system (reflexive control). Among the philosophical approaches that theoretically engage with justificatory processes for granting legitimacy to political authority, I specifically focus on the liberal tradition. Liberalism, from its origins, has been oriented on striking a balance between establishing justificatory public procedures for political decisions and the attempt to keep at bay social conflicts among individuals over moral and practical matters. Contemporary liberal theories, notwithstanding important differences among them, all share the underlying legitimacy principle according to which a coercive act is justifiable if and only if agents that ought to abide by this rule have reasons to accept it as valid.1 More precisely, liberal theories characterizes humans as free and equal and as sources of valid claims.2 Consequently, the liberal notion of  In the literature there is a wide debate regarding the possibility (or impossibility) of establishing political authority as legitimate, consequently granting a normative ground for political obligation. On this matter, see: Klosko (1987, 2005); Rawls (1964); Simmons (1999); Wolff (1970). 2  Liberalism, as a philosophical theory, was born within the modern social contract tradition (see Hobbes [1651] 1994; Kant 1991; Locke [1689] 1988 and Rousseau [1762] 2002). Regarding the fundamental normative role played by the ideals of freedom and equality, Kant in his “On the Common Saying: That May Be True in Theory, but It Is of No Use in Practice” ([1793], 1991: 74) claims (emphasis in the original): “Thus the civil condition, regarded merely as a rightful condition, is based a priori on the following principles: 1

1. The freedom of every member of the society as a human being. 2. His equality with every other as a subject. 3. The independence of every member of a commonwealth as a citizen.” These principles are not so much laws given by a state already established as rather principles in accordance with which alone the establishment of a state is possible in conformity with pure rational principles of external human right.”

1.2  Disagreement as raison d’être of Democracy

3

political legitimacy relies upon the requirement to respect each citizen’s autonomy and freedom, thus assuming that every citizen ought to give her assent to coercive power.3 In other words, liberal accounts of political authority, however different, revolve around two main concepts: the notion of legitimate political authority and the depiction of citizens as free and equal autonomous agents. Traditionally, liberal political theories have tried to establish a balance between two fundamental goals: (i) providing normative arguments in support of the legitimacy of a specific political conception, focusing both on the theoretical and practical (in the Kantian sense) aspects of this enterprise; (ii) guaranteeing actual endorsement to political principles and social norms by real-world individuals. As we shall see, these two goals often are in tension with one another. Actually, the research that led to the writing of this work was partly prompted by the realization of this inner tension between two of the main goals of political liberalism. Ultimately, the main proposal of this book is defending a justificatory strategy that manages to reach both these goals, while keeping at bay the inner tensions of the liberal paradigm in ways that are not detrimental to the overall project. In outlining my proposal for a revised version of political liberalism, I shall investigate at depth the relational dimension of justice as expressed by the basic notions of liberalism. In doing so, I will defend a revised version of political liberalism that I refer to as relational liberalism.4

1.2 Disagreement as raison d’être of Democracy Contemporary liberal theories that tackle the issue of political legitimacy ought to deal with the fact of pluralism (Rawls, 1993). Assuming pluralism as a fixed aspect of contemporary multicultural democratic contexts is both descriptively adequate and normatively relevant. Indeed, liberal societies, leaving individuals free to reason  “To this political liberalism says: our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason. This is the liberal principle of legitimacy. […] Only a political conception of justice that all citizens might be reasonably expected to endorse can serve as a basis of public reason and justification,” Rawls (1993: 137). 4  In referring to the relational dimension of justice, I assume that in a democratic society people should relate to one another as equals and should enjoy the same fundamental status. Some authors have coupled this ideal of equal democratic citizenship with a relational version of social equality (Anderson, 1999; Scheffler, 2010). In this work I do not engage with this debate about the best account of egalitarianism. My main goal is different: establishing adequate procedures of justification for collective decisions to grant democratic legitimacy in the face of deep disagreement, while respecting the agential autonomy of the subjects involved and defending an ideal of co-authorship for identifying adequate intersubjective interactions in the political domain. Within my proposal the institutional dimension of justice plays a fundamental role, since I assume that the justice of democratic settings relies in a fundamental way on the way in which political institutions organize social cooperation and are responsive to citizens’ demands and contestations. 3

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1 Introduction

autonomously and to develop their own conception of the good without a prefixed requirement of homogeneity, offer the perfect breeding ground for wide-spread pluralism. In other words, liberalism, as a political conception grounded in the acknowledgment of the autonomy of individuals, has established a cultural tradition in which disagreement is not simply described as the upshot of conflicts among agents, but rather as the expression of agents’ liberty.5 In very general terms, taking a step forward, one of the underlying assumptions of this book is that disagreement can be understood as one of the raison d’êtres of democracy as a model of decision-making among individuals in constant conflict.6 Why is this so? Well, reasoning about a homogeneous society in which citizens happen to share preferences and values, democratic procedures would almost look superfluous, since it would be possible for citizens living in this society to reach collective decisions through some forms of unanimous consent or thanks to not very conflictual deliberative processes. Or, on the other side of the spectrum, liberalism, revolving around the request of respecting the autonomous reflexive agency of free and equal agents, provides ultimate reasons for ruling out any form of justifiable enlightened absolutism. Hence, coupling the normative request of respecting the autonomy of citizens with the fact of pluralism leads us to define democratic procedures of decision-making as the only method for dealing with disagreement that is also compatible with liberalism as a political theory. To sum up, disagreement and conflicts among citizens over preferences, interests and conceptions of the good life are one of the fundamental features of democracy as the most adequate model for collective choices under nonideal circumstances (Benhabib, 1994; Kolodny, 2014). I am suggesting that wide-reaching disagreement is one of the indicators of a functioning social domain in which individuals are not forced to adhere to a specific view of life and are free to develop their autonomous conceptions of the good life and set of preferences. Yet, a stable democratic setting ought to find justifiable procedures to manage political conflicts – in order to avoid indeterminacy. It appears that liberal democracies have a double task: establishing decision-making processes and deliberative settings for granting the legitimacy of collective decisions, while assuring that minoritarian perspectives are recognized and not treated as irrelevant or, worst, morally and/or epistemically inferior. The legitimacy of political  This strong commitment to a normative notion of legitimacy pays respect to the fact that, within a liberal system, every coercion should be ideally justified in the name of safeguarding the freedom and the equality of citizens. On this matter, Kant’s words are enlightening: “No-one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end which can be reconciled with the freedom of everyone else within a workable general law  – i.e. he must accord to others the same right as he enjoys himself,” Kant ([1793] 1991: 74). 6  Jeremy Waldron, for example, describes disagreement as one of the constitutive features of the political domain and one of the fundamental reasons why majoritarian decisions ought to be respected by all the members of the constituency: “majority-decision commands our respect precisely because it is the one decision-procedure that does not, by some philosophical subterfuge, try to wish the facts of plurality and disagreement away,” Waldron (1999: 99). 5

1.3  The Justificatory Dilemma of Liberalism

5

decisions is partly dependent upon a functioning majority-minority dynamic. However, respecting democratic decisions as the outcome of majority-decision is one thing; imposing a univocal view on every member of the constituency is another. In order to properly respect the autonomy of all the agents involved, no members of the constituency should be pressed to subdue their opinion to the majority’s preference (what I call the no-deference constraint). Along these lines, we can claim that liberalism, as a general paradigm of political legitimacy, ought to fully respect two normative requirements: (i) identify what conditions ought to be satisfied in order for a political decision to be authoritative and acknowledged as legitimate by the members of the constituency; (ii) fully respect the reflexive agency of citizens, therefore establishing fair procedures of decision-­ making and leaving enough room for contestation and possibly for ex-post revisions of specific highly contested decisions.

1.3 The Justificatory Dilemma of Liberalism In this book my aim is to investigate two lines of research. First, I shall develop a proposal for publicly justifying political principles and regulative ideals that constitute the normative backbone of institutional designs for liberal societies. Second, I shall analyze what are the most adequate processes to reach shared decisions in contexts of deep disagreement. Again, both these aspects of a general liberal conception of democratic legitimacy are made relevant by the recognition of the fact of pluralism. First, it is both theoretically and practically challenging to provide public justification in highly conflictual political contexts. Second, once the fact of pluralism is accepted as a defining feature of liberal societies, wide consensus over political decisions appears to be often out of reach. Liberal legitimacy, as a concept and as a collective enterprise, constantly swings between two opposite vocations: the philosophical requirement of justifying political conceptions via normatively binding reasonings and the practical constraint of respecting the fact of pluralism and being attuned to the reality of contemporary social contexts. This ambiguity at the roots of liberal legitimacy is both a source of richness and a cause for concern. Simply put, different authors may have in mind different things when they talk of liberal legitimacy. A political principle x can be described as legitimate, since it has been justified through complex normative arguments that idealized agents cannot reasonably reject (acceptability principle of legitimation). Or else, the same principle x can be described as efficacious and action-guiding, since real-world agents find it practically acceptable and legitimate (actual acceptance principle of legitimation).7  Enzo Rossi (2013: 561) suggests a taxonomy of four approaches to legitimacy. There is idealistic voluntarism, found in Locke and in some sense in Rawls as well, according to which legitimacy is granted by a consensus established with reference to moral commitments that agents assumed in a pre-political stage – an account of natural rights for Locke ([1689] 1988); the conception of per7

6

1 Introduction

In developing my account, I will often refer to what I call the justificatory dilemma of liberalism. The dilemma rests on the never-resolved tension between justification and legitimacy, as these two concepts call attention to different (and essential) aspects of political authority that often end up at odds with each other (Simmons, 1999). On the one hand, some paradigms of political authority mostly focus on the production of justificatory arguments that should work in any circumstance, as they are conceived as ideal and universalizable, therefore abstracting from specific political contexts (philosophical-normative desideratum). On the other hand, another strategy looks for a model of political legitimacy that addresses the real circumstances of justice, primarily focusing on the possibility of granting actual acceptance of political principles by real-world citizens (realist desideratum). These two desiderata are both essential for a liberal account of legitimate political authority, and yet it is extremely complicated to satisfy both simultaneously.8 These two readings of what it means for a principle of justice (or for a general political conception) ‘to be legitimate’ rest, in my opinion, on two different interpretations of the quest for stability, that so clearly Rawls illustrates at the center of his paradigm of political liberalism (specifically see the introduction of Political Liberalism, 1993: xiii–xlix). According to a strictly normative perspective, stability for the right reasons is granted thanks to the provision of philosophical arguments that through adequate idealizations show what principles and reasons rational and reasonable agents cannot reasonably reject (Raz, 1985, 1998; Scanlon, 1998, 2003; Wall, 1998, 2010). The legitimate authority of the conception of justice here draws upon the kind of hypothetical consensus that an idealized constituency would reach over the validity and justifiability of the political conception. This perspective links the quest for stability with the attempt to provide stringent philosophical arguments that would be applicable in any circumstance, as they are conceived as ideal and universalizable. This strategy, in attempting a balance between normative ambitions and attunement to the context of implementation of the political conception, gives priority to the first dimension. The legitimate authority of the political conception is asserted here by showing that the members of an idealized constituency would reach a hypothetical and binding consensus on the value of that conception. In this

sons as free and equal for Rawls (1971, 1993). A second option is idealistic substantivism, defended by Mill ([1859] 1979) and Raz (1986), according to which political coercion is legitimated through reference to substantive pre-political moral commitments, specifically wellbeing and autonomy, respectively. The third approach is described as realist voluntarism, expounded by David Gauthier (1986), who argues that political order is reached thanks to an agreement among agents who are motivated not by moral reasons, but rather by self-interest against a paradigm of game-theoretic equilibria. Finally, there is realist substantivism, introduced by Hume ([1739] 2007), according to which political legitimacy does not require consensus, because we can rely on a naturalistic description of how agents reach spontaneous cooperation through convention. 8  “The liberalism dilemma becomes in this way clear: how can we reconcile impartiality and neutrality on the one hand, with the assessment of values on the other? As liberals, it looks like we are doomed to be constantly swinging between a sort of schizophrenic (discontinuous) scission and an authoritarian continuity.” Sebastiano Maffettone in Dworkin and Maffettone (1996: 195), translation by the author.

1.3  The Justificatory Dilemma of Liberalism

7

sense, this perspective, by tying the possibility of establishing a legitimate political conception to the introduction of a normative justification as stringent and consistent as possible, accepts to limit the universalistic ambitions of the justificatory practice itself. Since idealized philosophical arguments, while authoritative in themselves, are unlikely to be acceptable to all the actual members of the demos, this strategy limits the justificatory constituency to individuals that are in some way already committed to liberal values (Ackerman, 1980, 1983; Forst, 2012; Quong, 2011; Weithman, 2011).9 By contrast, a second strategy interprets the quest for stability in the footsteps of the social contract tradition, connecting stability with the ability to establish and maintain peaceful coexistence among individuals with different interests, plans of life, and value systems. According to this perspective, the real chances of guaranteeing stability to a liberal institutional context lie in the ability of liberal theory to be inclusive and to respect actual citizens’ points of view, therefore avoiding grounding the overall legitimacy of the system onto too demanding standards of morality justified through robust abstractions from reality.10 To sum up, carving out a general account of liberal legitimacy requires to make a choice between these two strategies: either focusing on normative reasons no reasonable agent can reject or developing a theory about how nonidealized agents can be motivated to be guided by justice-oriented reasons. The first strategy appeals to an idealized account of our rational and practical abilities as free and equal agents. This approach rests on the intuition that, in order to achieve justice, we should appeal to the best description of ourselves we can reasonably expect to be able to abide by. By contrast, the second strategy assumes that we ought to accept the limits that reality imposes to normative reasoning, thus suggesting a priority for inclusivity over philosophical demandingness. One of the main goals of this book it to argue in favor of a justificatory strategy that tries to be loyal to both these desiderata, in an attempt to overcome the justificatory dilemma of liberalism without the need to resolve it once for all. I am aware that in this way, liberalism would end up assuming the semblance of Janus, always on the edge between two fundamental desiderata. I maintain, though, that the only path forward involves accepting the inner tension running through the liberal paradigm and working forward from this acceptance. In fact, there is no easy way out from the justificatory dilemma of liberalism. Picking one of the two horns and letting go of the other implies either facing a lack of motivational force and detachment from the actual circumstances of social contexts, or letting go of sound normative ambitions for the sake of reaching a contextual agreement over

 “the greater the degree of idealization or abstraction […] the less effectively motivational the proposal which has been justified in this way,” D’Agostino (1992: 152). 10  “the idea of stability has content independent of its normative status of being based on the right considerations. A society can be unstable even if its institutions are based on good reasons. So the idea of stability seems tied to both a prescriptive ideal of public justification and a descriptive ideal of actual stability for the right reasons,” D’Agostino and Vallier (2014: 33). 9

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not-too-demanding principles.11 Instead, we should try to work a way out from the dilemma while keeping both the commitments: the philosophical requirement to provide justificatory reasons that are both normatively binding and motivationally powerful and the realistic stance according to which a legitimate political conception, to be not just desirable, but also feasible, should be consistent with the actual circumstances of justice. Many authors (D’Agostino, 1992, 1996; Eberle, 2002; Gaus, 2011; Maffettone, 2010; Quong, 2011; Rawls, 1993; Rossi, 2013; Talisse, 2009) have highlighted the inner tensions of the liberal paradigm of political legitimacy. My contribution with this work is to suggest a strategy for solving the dilemma striking a hopefully stable balance between the two desiderata. I maintain that the best way to laid out a workable justificatory strategy that results satisfactory for both the tensive dimensions of liberalism is to clearly distinguish between two aspects of the justificatory project: the ideal and the nonideal stages of the process. I shall defend a fundamental intuition according to which dividing the justificatory labor in two different stages allows to tame the dilemma in a certain sense, because the two stages have different goals and achieve them with very different argumentative strategies and philosophical expectations. Specifically, establishing philosophically compelling justificatory arguments for a normatively binding conception of justice is the focus of the ideal phase. The nonideal phase, instead, focuses on the actual circumstances of politics and on the effort at granting support to the political conception by real-world citizens in context of deep conflicts, individuals’ motivational limits, and public contestation of political choices and laws. According to my proposal, the only winning strategy to satisfy both desiderata, while being loyal to the overall liberal project, is to clearly establish that these desiderata can be satisfied, though not simultaneously, by implementing different justificatory strategies. This conclusion has important consequences for the general paradigm of liberal legitimacy that I defend, and I shall spend Chaps. 2 and 4 in clarifying my stance on this.

1.4 An Epistemic Reading of the Justificatory Dilemma In the previous section I illustrated the two desiderata of mainstreams paradigms of liberal legitimacy, underscoring that any approach that tries to satisfy both these dimensions always risks falling into a justificatory dilemma. In this section my goal is to reframe this analysis in epistemological terms. According to an epistemic reading of the liberal ideal of legitimacy, the main question we have to answer is the  “Rawls actually does not think in terms of a coherent integration between a normative-philosophical justification and a factual legitimation. Rather he continues to work within the horizon of a philosophical theory of justice. Nevertheless, in order to settle the central dilemma between stability and pluralism, he must concede that a pure philosophical justification of liberal democracy is itself insufficient to guarantee the equilibrium between these opposing claims,” Maffettone (2010: 22). 11

1.4  An Epistemic Reading of the Justificatory Dilemma

9

following: is it realistic to assume that a neutral justification of liberalism would prove robust enough vis-à-vis the personal perspectives – often in conflict between one another – of citizens? Indeed, one of the solutions adopted by contemporary theories of liberal legitimacy for granting public justification to liberal principles of justice implies developing justificatory arguments that are neutral, and therefore robust, with regard to the various comprehensive conceptions privately held by citizens. Robustness is an epistemic notion according to which a “theory T1 is robust vis-à-vis T2 to the extent that changes in T2 — including the total rejection of T2 in favor of some competing theory T2’  — do not weaken the justification of T1. Robustness is to be contrasted with sensitivity; to the extent that the justification of T1 is affected by changes in T2 T1 is sensitive to T2” (Gaus, 1996: 6). The robustness requirement restrains political justification from appealing to partisan reasons  – otherwise the political conception would result sensitive to non-public doctrines from which these partisan reasons are derived. The robustness requirement expresses a constitutive aspect of the liberal paradigm, that is, the search for public agreement over the legitimacy of a political conception (or more specifically of political decisions), without requiring full agreement by citizens over the grounding reasons for this legitimacy. This means that what is relevant for political legitimacy is to prove that as many citizens as possible can converge (D’Agostino, 1996; Gaus, 1996) on the validity of such a conception, notwithstanding the fact that they do not agree on the reasons in support of the validity of this conception. In a sense, the robustness requirement echoes, from the epistemic perspective, the procedural ideal of democracy according to which collective decisions are legitimate in virtue of the equal consideration that should be granted to the interests and preferences of all members of the constituency by means of suitable decision-making procedures. Political decisions should address the demands of the participants involved in decision-making either by meeting their valid claims or by offering a justification for rejecting them. In either case, democratic processes of decision-making should respect the responsiveness requirement, that is, ensure that democratic decisions are responsive to citizens’ opinions and preferences and respectful of minorities’ dissenting opinions (Liveriero & Santoro, 2017; Mackie, 2011).12 Democratic procedures are responsive when they treat citizens as autonomous reflexive agents, not as patients, primarily passive recipients of political decisions. Along with procedural fairness, responsiveness is the other feature justifying majority rule as a democratic criterion of decision-making in conditions of stable disagreement, because majority rule incorporates the commitment of giving equal weight to citizens’ interests and demands. From this commitment it follows that, when public procedures of justification consistently respect the robustness requirement and prove to be adequately responsive to citizens’ preferences, then even members of the constituency who are not satisfied with the final decision,

 For an exhaustive analysis of responsiveness as an intrinsic property of the democratic procedure, see Urbinati and Saffon (2013). They include responsiveness among the main features of their account of procedural democracy along with uncertainty; openness and contestation; participation, emendation, and non-triviality. 12

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1 Introduction

are still provided with non-partisan reasons to consider this decision as publicly legitimate.13 The robustness requirement plays a relevant epistemic role not just within the practice of public justification. Rather, it is also important for granting an adequate normative force for collective procedures of decision-making. Considering a political context of pervasive disagreement, robustness provides us with an epistemic criterion for assessing which decision-making and deliberative processes are adequate to grant that political decisions are indeed acceptable for the majority of the citizens that took part in the public confrontation (Biale & Liveriero, 2017; Bohman, 2006). This reading of the robustness requirement is useful for keeping together two aspects of liberal legitimacy that I have already introduced. First, we have the strictly normative dimension of liberal legitimacy that focuses on establishing public procedures of justification for a liberal conception of justice, aiming at demonstrating that this political conception is indeed robust vis-à-vis a variety of comprehensive conceptions privately held by citizens. Second, a specific political decision can be defined as robust when is the outcome of adequate procedures that respect the agency of every member of the constituency and ensure everybody the possibility of impacting public choices. As we shall see in Chap. 6, democratic processes of decision-making that attempt to satisfy both the robustness requirement and the regulative ideal of respecting the autonomous reflexive agency of citizens prove more successful in reaching political agreements through practices of compromise and negotiation, rather than relying on more idealized forms of consensus.

1.5 Justification for Whom? In illustrating the liberal justificatory dilemma, I have underscored the methodological differences between a justificatory strategy that appeals to the hypothetical consensus that can be reached by idealized versions of ourselves reasoning over normatively justified action-guiding principles and, alternatively, a strategy that looks at the agreement that citizens can indeed reach under real-world conditions. Again, is liberal legitimacy primarily justified in referring to agents as they should be, or rather, what really counts is dealing with actual citizens, characterized by reasoning flaws, incoherent beliefs, epistemic stubbornness, emotion-meddling and all?14 Answering this question requires us to specify which is the justificatory constituency of reference for the paradigm of liberal legitimacy. This conclusion sounds  “Though a social order not legitimated by actual consent may be unfree, that unfreedom can be mitigated by our recognition that it is at least possible to imagine people giving it their consent,” Waldron (1987: 140–141, emphasis in original). 14  Simone Chambers (2004: 155), looking for a definition of constitutional legitimacy starting from the concept of popular sovereignty, speaks of a hypothetic notion of sovereignty when referring to the ideal/philosophical arguments that tend to abstract from the perspective of real citizens. “It is this type of argument that I call hypothetical popular sovereignty, as it does not directly call on real people but rather deduces from general principles what the ‘people’ would want and by extension would agree to.” 13

1.5  Justification for Whom?

11

reasonable, for any approach of political justification must start laying out its assumptions about those to whom the justification is addressed.15 Specifically, the first strategy assumes that the practical normativity of the liberal political conception can be granted if and only if we refer the justification to idealized agents employing the epistemic reasons available to human beings when they reason at their best.16 The second strategy, instead, has the goal of assuring that actual members of the political constituency adequately support the conception of justice. Ideally, it seems to me that the constituency of justification should not diverge too much from the actual constituency of implementation of the political conception. However, some authors have proposed to limit the justificatory strategy of liberalism to an idealized constituency (Dworkin, 2000; Habermas, 1995; Quong, 2011). They maintain that doing away with idealization and abstractions from the messy reality would frustrate the normative ambitions of the overall liberal project and endanger the internal coherence of the justificatory enterprise. They claim that the legitimacy of a liberal conception of justice is strictly connected with the ability of liberal theory to prove that there are sound philosophical arguments for demonstrating the ‘normative acceptability’ of this conception of justice. The acceptability test is passed when the justificatory strategy has shown that idealized agents, rational and reasonable, have no compelling reasons to reject the political conception adequately justified.17 By contrast, other authors have instead underscored that focusing on an idealized version of the constituency requires justificatory arguments that might end up not properly respecting the autonomy of real-world agents and even risking endangering their personal integrity (Gaus & Vallier, 2009; Sen, 2009; Vallier, 2011, 2014, 2016). Moreover, a justificatory strategy that relies on strong idealizations can also be criticized for impracticability, since the motivational force and the action-guiding power of a conception cannot be determined by omitting any reference to the real constituency of applicability (Geuss, 2008; Horton, 2010; Rossi, 2010, 2013, 2014; Rossi & Sleat, 2014; Sleat, 2015). On similar lines, Catriona McKinnon, in her book Liberalism and the Defence of Political Constructivism (2002: 1–28), criticizes versions of liberalism that provide justificatory arguments that are powerful only when directed to citizens who already share liberal commitments. She claims that these approaches rely on a sub-Humean version of motivational internalism, according to which a justified reason is motivationally adequate if and only if the agent to whom it is addressed already possesses

 It is worth noting that Rawls (1987: 1) highlights the fundamental role played by the political constituency when he states that: “The aims of political philosophy depend on the society it addresses.” 16  A very coherent version of this first strategy is employed by Steven Wall (1998) that, defending a perfectionist version of liberalism, claims that justificatory procedures should not be constrained by the search for legitimacy, consequently focusing on how to assure the actual acceptance of principles by real citizens, but rather concentrating on the normative attempt to justify the ideal acceptability of such principles thanks to the reference to good epistemic reasons. 17  “it would no longer be of interest from the point of view of acceptability, and hence of validity, but only from that of acceptance, that is, of securing social stability,” Habermas (1995: 122). 15

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1 Introduction

an actual desire for accomplishing the act that is recommended by that reason. McKinnon claims that in order to satisfy the ideal of inclusivity as well as proving efficacious in actual political contexts, a valid liberal procedure of justification should look at ways of including liberal and non-liberal citizens alike. According to this proposal, liberal strategies ought to refer to an “inclusive constituency of justification”,18 otherwise they risk running afoul of two of the grounding concepts of liberalism, namely inclusion and toleration. McKinnon (2002: 16–28) argues that the practice of political justification should respect two constraints: the intelligibility constraint and the motivational adequacy constraint. (i) The intelligibility constraint requires political justification to be framed in terms that people are able to understand. Consequently, the justificatory reasons that are provided should be intelligible, sound and provide evidence  – when possible  – for supporting political conceptions. Politically justified reasons should be able to defeat other competing reasons.19 I shall come back to this in discussing the intelligibility constraint in Chap. 5, since various authors have provided quite different interpretations of this constraint, in their attempt to justify the public justification principle. (ii) The motivational adequacy constraint requires that political reasons respect the fact of pluralism. In this regard, the justification of political conceptions should not be too demanding, insisting that all citizens should share the same perspective about fundamental political and moral issues. The motivational constraint stresses the relevance of disagreement as one of the raison d’êtres of liberal democracies, consistently with the general paradigm I am here laying out. A liberal theory that manages to respect both these constraints “searches for reasons which could become motivating for all, while minimising the diminishment of deep diversity in its ideal constituency of justification” (McKinnon, 2002: 14). Consistently with my previous remarks, a liberal theory that ascribes the right weight both to the strictly philosophical-normative dimension and to the motivational dimension of the complex notion of political legitimacy, is intrinsically dualistic, both in the definition of its goals and in the methodologies employed to reach them.20 Political principles need to be soundly justified (for meeting the philosophical-­normative desideratum), but the procedure of justification of these  “We want the approach we take to the problem of public justification to be inclusive in the sense that the proposals which it enables us to justify are justified for or to the widest possible (relevant) community of individuals,” D’Agostino (1992: 149). 19  In this regard, Rawls (1993: 209) claims that: “Earlier we said that political liberalism holds that under reasonably favourable conditions that make a constitutional democracy possible, political institutions satisfying the principles of a liberal conception of justice realize political values and ideals that normally outweigh whatever other values oppose them. The preceding corollaries of completeness strengthen its stability; allegiance based on chose political values is stronger, and so the likelihood that they will be outweighed by opposing values is that much less.” 20  “there is no such thing as a clear-cut normative-descriptive distinction: fruitful normative political theory has to be in dialogue, as it were, with an empirically grounded understanding of a society’s forms of legitimation. That is not to say that political philosophy cannot be action-guiding, 18

1.6  Ideal vs Nonideal Theory

13

principles, in order to be motivationally effective and inclusive toward the entire (nonidealized) political constituency, should not dismiss the role played by private reasons and conceptions of the good that shape citizens’ opinions and goals (realist desideratum). The validity of a specific political conception, and the possibility for this conception to be assumed as legitimate, depends upon the ability of the justificatory strategy to keep together – notwithstanding the justificatory dilemma – both the acceptability for normative sound reasons the actual acceptance from the point of view of real-world citizens. This is, in my opinion, the fundamental challenge for liberal legitimacy.

1.6 Ideal vs Nonideal Theory In the previous sections I have briefly noted that one possible way out of the justificatory dilemma of liberalism is to clearly distinguish between an ideal and nonideal stage of the justificatory enterprise. In my opinion, if we focus solely on the ideal stage, we are not able to resolve the justificatory impasse, since normatively compelling arguments in support of a specific conception of justice, relying upon strong idealizations, are in fact too insensitive to the real circumstances of politics. The fact-insensibility of the ideal theory is an essential feature, but it might imply unwelcome consequences. Ideal theory accounts for how justice would work in an idealized – quasi-perfect world – and therefore establishes normative criteria for assessing and revising the nonideal world in the face of the idealized model.21 However, we have to keep in mind that all idealizations are false statements, hence, there are authors who have questioned the actual ability of ideal theory to be action-guiding, since the compliance of idealized agents with the political conception is already assumed in the structure of the justificatory argument itself.22 By contrast, nonideal theory is naturally highly-sensitive to the real circumstances of social life, therefore mostly focusing on the feasibility constraints that might impede a theory of justice in proving efficacious and motivationally adequate (Phillips, 1985; Simmons, 2010;

let alone criticize the status quo. Rather, it cannot do just that, on pain of losing grip on its object,” Rossi (2013: 568, emphasis in original). 21  “Viewing the theory of justice as a whole, the ideal part presents a conception of a just society that we are to achieve if we can. Existing institutions are to be judged in the light of this conception and held to be unjust to the extent that they depart from it without sufficient reason,” Rawls (1971: 216). 22  On this matter, Laura Valentini (2009: 333) introduces what she calls a paradox of ideal theory: “the paradox of ideal theory, can be stated as follows: ( a) Any sound theory of justice is action-guiding. (b) Any sound theory of justice is ideal. (c) Any ideal theory fails to be action-guiding.”

14

1 Introduction

Valentini, 2009).23 Different nonideal theories can be distinguished gradually, referring to the different levels of sensitivity they show toward political facts and the actual circumstances of justice.24 Real circumstances of justice are actual constraints on the applicability of a normative political conception, therefore, the more a political conception is sensitive to nonidealized circumstances, the more it is focused on establishing applicability criteria for political principles (Hall, 2013; Jubb, 2009; Sleat, 2016b; Valentini, 2009, 2012).25 Along the lines of this fairly standard distinction between ideal and nonideal theory, I want to emphasize that nonideal theory does not simply deal with the actual conditions of noncompliance and the unfavorable social circumstances of the real-world. The fact that the ideal theory applies robust idealizations to the justificatory framework, while nonideal theory attempts at developing arguments starting from actual circumstances, does not necessarily mean that the task of nonideal theory must be limited to removing injustices in the light of the regulative ideal provided by the ideal theory. Rather, it is fundamental to stress that even the nonideal theory can play a normative role within the justificatory procedure.26 As we shall see, once the intrinsic tension between normative and motivational requirements has been brought to the foreground thanks to the analysis of the justificatory dilemma of liberalism, it is not possible to claim that the whole normative task can be

 More recently, a quite vast literature has spurred from the acknowledgment that approaching the topic of individual responsibility in the face of injustice cannot be properly conducted from the perspective of ideal theory. By definition, in fact, ideal theory abstracts away from conditions of oppression to construct an ideal model of intersubjective relationships. This ideal theory approach obfuscates the role of oppression in structuring social practices, relationships, and indent-forming processes. I shall develop this line of argument in Chaps. 6 and 7. For an exhaustive criticism of ideal theory as an ideology that involves “a distortional complex of ideas, values, norms, and beliefs that reflects the nonrepresentative interests and experiences of a small minority of the national population-middle-to-upper-class white males-who are hugely over-represented in the professional philosophical population,” see Charles Mills (2005, emphasis in original). 24  There is deep disagreement among theorists about how much fact-sensitive a theory of justice should be. Gerald Cohen (2003), for example, maintains that a good theory of justice should be completely fact-insensitive. By contrast, Rawls holds a view that is fact-sensitive. For an exhaustive analysis of the theoretical relation between ideal and nonideal theory on the one hand, and fact-sensitivity on the other, see Farrelly (2007). 25  Among the actual circumstances of justice that constrains the applicability of theories of justice, we can briefly cite: the impossibility of obtaining strict compliance by citizens; unfavorable historical, social or economic conditions; indeterminacy and inconclusiveness in collective methods of decision-making; deep untamed disagreement; human vulnerability; human nature; difficulties in working outreaching institutional reform. 26  Matt Sleat (2016a: 30–31) correctly notes that we have to distinguish between a commitment by liberal theorists to respect the feasibility constraints imposed by reality and, alternatively, a political realist approach to political legitimacy. Very often, these two analyses are erroneously overlapped. Sleat maintains that nonideal approaches within the tradition of liberalism, even though sensitive to the real circumstances of politics, still adhere to the methodology of liberalism of establishing normative reasons for action and for complying with political authority. By contrast, political realism defends a political conception intrinsically different from liberalism, employing a different methodology and assuming completely different overall goals for the political enterprise. 23

1.6  Ideal vs Nonideal Theory

15

a­ ccomplished by ideal theory alone. According to my proposal, the ideal stage of the justificatory paradigm fulfills the task of depicting a general framework for a liberal conception of justice, with special emphasis on defining the grounding normative tenets and fundamental regulative principles. This normative framework is outlined employing idealizations and abstractions that regard the epistemic capacities and the inter-subjective attitudes of agents; the economic, social and historic circumstances of the political society, and so on. The nonideal stage, instead, has the goal to assess whether and how it is possible to reach reconciliation between this general normative framework justified in the ideal stage and the actual systems of beliefs held by real-life citizens. Furthermore, the nonideal stage deals with conflict management and establishes what forms of political and social contestations are available to citizens in order to testify their disagreement with political decisions. Relating to this twofold justificatory approach that I will defend in this work, I conclude that justificatory procedures for democratic decisions cannot rely solely on standards that are drawn from an idealized analysis, for it is essential to keep in mind the goal of developing a theory that proves also politically efficacious. This means that a liberal theory of legitimacy concerning democratic settings should look for establishing political procedures of decision-making, deliberative settings, ex-post forms of contestation, checks and balances rules that are both normatively justifiable and also efficacious enough to overcome indeterminacy and to be stably supported by the majority of the members of the polity. An effective democratic ideal, that I assume here would encompass liberal ideals as well, has to define standards that actual democratic systems can strive for and achieve (or at least reasonably aim to achieve) in practice. It follows that an account of liberal-democratic legitimacy that rests on onerous idealizations cannot guide actual democratic procedures efficaciously because it sets standards and goals that actual democratic systems cannot reasonably aim to achieve.27 These idealized standards, even though normatively relevant in establishing a regulative ideal toward which to strive, often are not helpful in improving the quality of democratic processes, rather they can even have the detrimental effect of delegitimizing real decision-making processes. This happens because out-of-reach goals can frustrate attempts at institutional reform and proposals for structural revisions, since they rely on principles and normative reasons so highly idealized that they suggest that they are not, and cannot be, embodied in actual procedures (Biale & Liveriero, 2017; Farrelly, 2007; Hendrix, 2013; Robeyns, 2008; Weinstock, 2017).28 Further, ideal theorizing can actually be  “At the extreme of fact-insensitivity (what we can call extreme ideal theory), one runs the risk of invoking an account of justice that fails to function as an adequate guide for our collective action in the real, non-ideal world,” Farrelly (2007: 846). 28  “For non-ideal theory, the problem with contemporary liberal theory is that its insufficient regard for the facts has impeded its ability to fulfil its normative ambitions of providing guidance for political action and reform. Greater concern for the facts, either in relation to implementing the recommendations of ideal theory in the real (non-ideal) world or through incorporating those facts into normative theorising itself, will produce a theory more suited to guiding action here and now. The more facts one incorporates, the more realistic the theory will be,” Sleat (2016a: 29, emphasis in original). 27

16

1 Introduction

more problematic than traditionally envisaged: the language of rights and liberal values, when completely detached from a critical appraisal of real-world asymmetries of power and structural injustices that characterize our democracies, can actually have a perverse effect in mischaracterizing our reality, not allowing a correct uptake of what justice requires from agents in nonideal circumstances.29 To avoid these shortfalls and foster both the normative guidance and the efficacy of a liberal political conception, I contend that the debate over the legitimacy of liberal-democratic systems should be developed starting from a technical analysis of the actual, nonidealized, circumstances of justice. This analysis of the actual circumstances of justice is essential for at least three reasons: (i) it favors the development of a model of political legitimacy that takes the motivational aspects of politics seriously; (ii) it is strategic to underscore that the contemporary political debate over the ideal of political equality has been overlooking the epistemic dimension of the basis of equality; (iii) it pushes normative theorizing to acknowledge from the start that in real-world contexts very often, if not always, the principles and values of the ideal theory are twisted by contextual understandings and distortions that are conducive to fostering long-standing social injustices. As we shall see, the analysis of the actual circumstances of justice is what allows us to unfold structural injustices and unjustified inequalities persisting in our democracies, notwithstanding the wide-spread rhetoric of rights, freedom and equality that characterizes contemporary western democracies. In a fashion similar to other authors that have been criticizing ideal theorizing as blatantly inadequate to unmask and provide solution to address these wide-spread forms of injustice and prejudice (Levy, 2016; Mills, 1997, 2017; Pateman, 1988; Young, 1989), I shall investigate how it is possible that so many unequal treatments and disparity of status and lack of respectful treatments are still part of our democratic societies despite the apparent support for freedom and equality as basic values of our societies. To put it harshly, it looks like sometimes the appeal to the normative discourse of rights is nothing more than a superficial and hollow attempt to pay lip service to these ideals without any real effort to realize them. In this work I contend that as political theorists we should try to make a stop to this destructive slippery slope, accepting the intrinsic limits of ideal theorizing against the actual circumstances of real-world democracies and opening up our research to fact-sensitive proposals that attempt to strike a balance between the quest for an adequate justificatory framework for  Famously, Charles Mills (1997, 2005) has argued that the ideal theory not only does not provide the theoretical weapons to fight actual injustices, rather the ideal theory is constitutive of the problem itself, since idealizations are prone to ideological distortions of social reality that end up reinforcing asymmetries of power and wide-spread instances of misrecognition. In that respect, ideal theory is a form of ideology in the pejorative sense of false consciousness, and it also prevents individuals from becoming aware of certain types of injustice. Even though I share many of Mills’ concerns regarding the risks of ideological distortions, in this work I contend that it is still possible to carve out an important role for the idealized normative level of analysis, as long as we couple it with an adequate critical appraisal of the nonideal circumstances of real-world political societies, where actual asymmetries of power are produced and maintained and where very often political ideals end up being distorted and possibly manipulated. 29

1.6  Ideal vs Nonideal Theory

17

political principles and the need for an engaged and contextual critical appraisal of the injustices that characterize our daily social lives. Along this general commitment, my main goal is to clarify the justificatory role that both the ideal and nonideal theory can play in a multi-level justificatory framework that leaves a lot of space to actual deliberation among real-world citizens, rather than trying to determine the core requirements of liberal justice through fact-insensitive arguments that heavily relies on abstractions from reality.30 To conclude this introduction, I outline the argumentative strategy of the book as planned through the different chapters. In Chap. 2 I first introduce the Rawlsian paradigm of political legitimacy and argue, pace Rawls, that it is not possible to do away with an epistemic analysis of the actual circumstances of justification. Specifically, I argue that political liberalism cannot be robust vis-à-vis different theories of justification because it is required that, as theorists, we take a stance regarding the epistemological framework we refer to while developing a specific theory of political legitimacy. Once I establish that a complete theory of political legitimacy cannot do away with an analysis of the epistemic circumstances of justification, I proceed to inquire which theory of justification is more adequate for the political domain. On this matter, I shall argue that specifying the epistemic-specific dimension of political equality, that I argue characterizes the symmetric standing of citizens in democratic settings, is fundamental for clarifying some aspects of the normative commitments that bind citizens together in the democratic enterprise. In the second part of Chap. 2, I argue that a coherentist account is the most adequate justificatory framework for the pluralistic world we live in. The chapter proceeds with claiming that coherentism constitutes the implicit epistemic background for the justificatory framework envisaged by Rawls. In order to corroborate this interpretative thesis, the last section of the chapter is spent unraveling the method of reflective equilibrium, the coherentist justificatory method that Rawls has been employing within his paradigm since A Theory of Justice (1971). Once I reach the conclusion that the Rawlsian model needs revision, I proceed, in Chap. 3, to investigating the actual epistemic circumstances of justice and defend what I call a modest epistemic paradigm. Then, I employ this epistemological analysis to lay out a revised account of the civic virtue of reasonableness, stressing that the epistemic dimension of this virtue has often been overlooked. In concluding the chapter, I  In his recent Utopophobia (2020), David Eslund has raised doubts about approaches in political philosophy that are wary of ideal theorizing and of those accounts that restraint normative reasoning to the limits imposed by humans’ nature. Estlund contends that we need to engage with aspirational forms of reasoning, ignoring certain facts about reality and human nature in order to clearly states what justice requires. In this work I partly share Estlund’s attempt to rescue ideal theorizing from all-the-way-down criticisms according to which we can do away with any form of moralized reasoning while engaging with political philosophy. However, as it should already be clear, my goal is to carve out a specific – and normatively independent – role for nonideal theorizing within my justificatory enterprise. For this reason, I assume Estlund would characterize my approach as concessive rather than aspirational, even though I defend an important role for the ideal theory and I agree with him that the basic normative notions of a liberal conception of justice ought to be defined and justified at the ideal stage of the theory. 30

18

1 Introduction

illustrate that this revised account of the virtue of reasonableness, along with the ideal of co-authorship, constitutes the normative core of the relational version of political liberalism that I defend in this work. In Chap. 4, I propose a revised version of the paradigm of political justification envisaged by Rawls. The main argument of this chapter is that the only way to resolve the inner tensions of the liberal model of political legitimacy is to accept the constrained applicability of such a normative theory within a pluralistic word and consequently propose a clear distinction between the goals of the ideal and nonideal stages of the theory. In this regard, the book proposes a multi-stage justificatory strategy, assuming that the arguments that prove adequate  – and essential for the overall justificatory goal of liberalism  – within the ideal stage of the theory, should be modified in order to deal with nonideal circumstances of justice for real-world political settings. I shall illustrate that, even though actual citizens are not perfectly reasonable and political institutions are far from being perfectly just, within liberal societies, the institutional framework is expected, at least minimally (and with a huge variety in different political contexts), to loosely reflects some basic values and norms embedded in a liberal conception of justice. According to this proposal, ongoing democratic practices can play an indirect normative role in legitimating a loose liberal background framework of ideals, general principles and evaluative standards in the nonideal phase of the theory. As we shall see, this bottom-up process of legitimation provides a minimal justification for the organizing ideals that characterize the liberal public culture. While we can have different and conflicting reasons for supporting our own favorite political conception as the most adequate choice to rule our political community, bottom-up legitimation is a sort of contextual agreement that stems from the ongoing democratic practice in which we are all engaged. From this it follows that even though at the nonideal level the theoretical and practical tools that the theory of justice can employ for dealing with actual disagreement are different from those available in the ideal stage, still it is plausible to claim that even nonideal justificatory and deliberative processes can appeal to a loose liberal justificatory framework as guidance for normative reasoning. After having defended my proposal for a twofold justificatory strategy, in Chap. 5, I focus on the notion of public reason. Public reason is the normative device bridging the gap between the general justificatory project of liberalism and the actual legitimation processes employed in pluralistic real-world democracies. This chapter investigates two aspects of public reason specifically: (i) it assesses whether public reason constraints are compatible with the liberal ideal of inclusivity; (ii) it discusses whether establishing a strictly public justification of political acts is a necessary requirement in order to guarantee legitimation to coercive acts. This chapter introduces two perspectives that criticize important basic intuitions of political versions of liberalism: (a) Steven Wall’s perfectionist notion of liberalism and his critique of public justification as irremediably self-defeating and (b) Gerald Gaus’s justificatory liberalism. In Chap. 6, I introduce the notion of principled compromise and I defend this as the best practice for reaching legitimate political decisions in highly conflictual democratic settings. Following the analysis developed in the previous chapters, here

1.6  Ideal vs Nonideal Theory

19

I contend that deliberative procedures of decision-making and confrontation, in order to actually respect citizens as reflexive autonomous agents, and in the attempt to resolve the dilemmatic outcomes of liberal models of legitimacy, should be loosened to include interests and private reasons and to pursue principled compromises rather than consensual agreement. I shall defend the view that political agreements via principled compromise, against an adequate constitutional backdrop, can indeed ensure compliance with the loose liberal framework of ideals, general principles and evaluative standards (philosophical-normative desideratum), meanwhile granting the peaceful coexistence of real-world citizens notwithstanding their personal conflictual perspectives and preferences (realist desideratum). However, in line with my goal of developing a paradigm of political legitimacy suitable for the actual circumstances of justice, I shall also stress that it is important to be aware of the negative side-effects that political processes aiming at public compromises can have for some members of the polity. The second part of Chap. 6, hence, will investigate the unfair effects that political compromises can cast on members of disadvantaged social groups. Once the asymmetrical power relations that characterize real-word democratic settings are laid out, it is then possible to draw some problematic conclusions regarding the possibility for compromise strategies to accommodate disagreement, while respecting the preferences and opinions of all members of the demos. The solution that will be defended in the conclusion of the chapter is that compromise-based decision-making processes should satisfy relevant normative requirements (i.e. inclusiveness, pluralism, publicity) in order to be considered legitimate. Finally, in order to test the overall validity of the paradigm of political legitimacy developed in the book, in Chap. 7, I shall analyze a concrete case, namely, the public conflict over the opportunity to extend marriage rights to same-sex couples. Even though marriage equality is nowadays established in many western countries, therefore appearing to be a less pressing case of political conflict than others, I maintain that this case is still theoretically interesting, as it shows that even when there is a stable and shared agreement on a specific human right as is the case for the right to marry (see Article 16 of UDHR), still many public conflicts (and backlash acts) may arise with regard to the social interpretation of such a right. The case of same-sex marriage is paradigmatic of the political conflicts that arise around the attempt, pressed by a section of society, to revise a normative concept, a social standard or a specific interpretation of a norm that has been established contextually and historically, but is perceived by the majority of the population as carved-in-stone. I shall defend a structural perspective in analyzing the conflictual dynamics over the management of the public space of democratic settings, a management that, we will see, too often unfairly favors privileged groups and elite. Following this structural analysis, I shall underscore that in the light of a long history of discrimination and invisibility, extending marriage rights to same-sex couples is the only appropriate solution to ensure that every member of the political community, regardless of their sexual orientation, can fully enjoy the status of first-class citizenship. Marriage equality signifies an extension of rights and opportunities to members of a minoritarian group that were previously precluded from this legal setting. Further, this

20

1 Introduction

legal extension has a profound symbolic significance in affirming the equal dignity of members of the LGBTQIA+ community in the context of the democratic public space. As we shall see, in this book I defend a revised version of political liberalism for real-world democracies, proposing a relational reading of this paradigm. This reading emphasizes that democratic legitimacy depends upon the possibility of assuring appropriate interactions among citizens who ought to mutually respect their status, both as practical and epistemic authorities. Relational liberalism rests on the ideal of co-authorship, according to which political legitimacy depends upon establishing adequate intersubjective interactions, rather than being primarily concerned with the selection of the best reasons for ideal justification. My goal is to show that relational liberalism is best suited to assure democratic legitimacy within political contexts of pervasive conflict and hyperpluralism. In other words, in this book I contend that the quest for democratic legitimacy relies, ultimately, on an analysis of how citizens relate to one another, and whether we can establish a social system in which a majority of citizens do respect the relational dimension of justice as expressed by the basic notions of liberalism.

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Gaus, G. F. (1996). Justificatory liberalism: An essay on epistemology and political theory. Oxford University Press. Gaus, G. F. (2011). The order of public reason. Cambridge University Press. Gaus, G. F., & Vallier, K. (2009). The roles of religious conviction in a publicly justified polity. Philosophy & Social Criticism, 35(1–2), 51–76. Gauthier, D. (1986). Morals by agreement. Clarendon Press. Geuss, R. (2008). Philosophy and real politics. Princeton University Press. Habermas, J. (1995). Reconciliation through the public use of reason: Remarks on John Rawls’s political liberalism. The Journal of Philosophy, 92(3), 109–131. Hall, E. (2013). Political realism and fact-sensitivity. Res Publica, 19(2), 173–181. Hendrix, B.  A. (2013). Where should we expect change in non-ideal theory? Political Theory, 41(1), 116–143. Hobbes, T. (1994 [1651]). Leviathan, edited by E. Curley. Hackett Publishing Company. Horton, J. (2010). Realism, liberal moralism and a political theory of modus vivendi. European Journal of Political Theory, 9(4), 431–448. Hume, D. (2007 [1739]). A treatise of human nature, edited by D. F. Norton and M. J. Norton. Oxford University Press. Jubb, R. (2009). Logical and epistemic foundationalism about grounding: The triviality of facts and Principles. Res Publica, 15(4), 337–353. Kant, I. (1991). Kant’s political writings, edited by H. S. Reiss, Cambridge University Press. Klosko, G. (1987). The principle of fairness and political obligation. Ethics, 97(2), 353–362. Klosko, G. (2005). Political obligations. Oxford University Press. Kolodny, N. (2014). Rule over none I: What Justifies Democracy? Philosophy & Public Affairs, 42(3), 195–229. Levy, J. (2016). There is no such thing as ideal theory. Social Philosophy and Policy, 33(1–2), 312–333. Liveriero, F., & Santoro, D. (2017). Proceduralism and the Epistemic Dilemma of the supreme courts. Social Epistemology, 31(3), 310–323. Locke, J. (1988 [1689]). Two treatises of government, edited by Peter Laslett, Cambridge University Press. Mackie, G. (2011). The values of democratic Proceduralism. Irish Political Studies, 26(4), 439–453. Maffettone, S. (2010). Rawls: An introduction. Polity Press. McKinnon, C. (2002). Liberalism and the defence of political constructivism. Palgrave Macmillan. Mill, J. S. (1979 [1859]). On liberty. Hackett Publishing Company. Mills, C. W. (1997). The racial contract. Cornell University Press. Mills, C. W. (2005). ʻIdeal Theory’ as Ideology. Hypatia, 20(3), 165–184. Mills, C.  W. (2017). Black rights/white wrongs: The critique of racial liberalism. Oxford University Press. Nagel, T. (1987). Moral conflict and political legitimacy. Philosophy and Public Affairs, 16(3), 215–240. Pateman, C. (1988). The sexual contract. Polity Press. Phillips, M. (1985). Reflections on the transition from Ideal to non-ideal theory. Noûs, 19(4), 551–570. Quong. (2011). Liberalism without perfection. Oxford University Press. Rawls, J. (1964). Legal obligation and the duty of fair play. In S. Hook (Ed.), Law and philosophy (pp. 3–18). New York University Press. Rawls, J. (1987). The idea of an overlapping consensus. Oxford Journal of Legal Studies, 7(1), 1–25. Rawls, J. (1993). Political liberalism. Columbia University Press. Rawls, J. (1999 [1971]). A theory of justice (rev. ed). Belknap Press. Raz, J. (1985). Authority and justification. Philosophy and Public Affairs, 14(1), 3–29. Raz, J. (1986). The morality of freedom. Clarendon Press. Raz, J. (1998). Disagreement in politics. American Journal of Jurisprudence, 43(1), 25–52.

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Robeyns, I. (2008). Ideal theory in theory and practice. Social Theory and Practice, 34(3), 341–362. Rossi, E. (2010). Modus Vivendi, Consensus, and (Realist) Liberal Legitimacy. Public Reason, 2(2), 21–39. Rossi. (2013). Consensus, compromise, justice and legitimacy. Critical Review of International Social and Political Philosophy, 16(4), 557–572. Rossi. (2014). Legitimacy, democracy and public justification: Rawls’ Political liberalism versus Gaus’ justificatory liberalism. Res Publica, 20(1), 9–25. Rossi, E., & Sleat, M. (2014). Realism in normative political theory. Philosophy Compass, 9(10), 689–701. Rousseau, J.-J. (2002 [1762]). The social contract and the first and second discourse, edited by S. Dunn. Yale University Press. Scanlon, T. M. (1998). What we owe each other. Harvard University Press. Scanlon, T. (2003). Rawls on justification. In S.  Freeman (Ed.), The cambridge companion to Rawls (pp. 139–167). Cambridge University Press. Scheffler, S. (2010). Equality and tradition: Questions of value in moral and political theory. Oxford University Press. Sen, A. (2009). The idea of justice. The Belknap Press of Harvard University Press. Simmons, A. J. (1999). Justification and legitimacy. Ethics, 109(4), 739–771. Simmons. (2010). Ideal and nonideal theory. Philosophy and Public Affairs, 38(1), 5–36. Sleat, M. (2015). Justice and legitimacy in contemporary liberal thought: A critique. Social Theory and Practice, 41(2), 230–252. Sleat. (2016a). Realism, liberalism and non-ideal theory or, are there two ways to do realistic political theory? Political Studies, 64(1), 27–41. Sleat. (2016b). What is a political value? Political philosophy and fidelity to reality. Social Philosophy and Politics, 33(1–2), 252–272. Talisse. (2009). Democracy and moral conflict. Cambridge University Press. Urbinati, N., & Saffon, M.  P. E. (2013). Procedural democracy, the Bulwark of equal liberty. Political Theory, 20(10), 1–41. Valentini, L. (2009). On the apparent Dilemma of ideal theory. The Journal of Political Philosophy, 17(3), 332–355. Valentini. (2012). In what sense are human rights political? A preliminary exploration. Political Studies, 60(1), 180–194. Vallier, K. (2011). Against public reason liberalism’s accessibility requirement. Journal of Moral Philosophy, 8(3), 366–389. Vallier. (2014). Liberal politics and public faith: Beyond separation. Routledge. Vallier. (2016). In defense of intelligible reasons in public justification. The Philosophical Quarterly, 66(264), 596–616. Waldron, J. (1987). Theoretical foundations of liberalism. The Philosophical Quarterly, 37(147), 127–150. Waldron. (1999). Law and disagreement. Oxford University Press. Wall, S. (1998). Liberalism, perfectionism, and restraint. Cambridge University Press. Wall, S. (2010). On justificatory liberalism. Politics, Philosophy & Economics, 9(2), 123–149. Weinstock. (2017). Compromise, pluralism and, deliberation. Critical Review of International Social and Political Philosophy, 20(5), 636–655. Weithman. (2011). Why political liberalism? On John Rawls’s political turn. Oxford University Press. Wolff, R. P. (1970). In defense of Anarchism. University of California Press. Young, I. M. (1989). Polity and group difference: A critique of the ideal of universal citizenship. Ethics, 99(2), 250–274.

Chapter 2

Political Legitimacy Under Epistemic Constraints

A conception of justice cannot be deduced from self-evident premises or conditions on principles; instead, its justification is a matter of the mutual support of many considerations, of everything fitting together into one coherent view. John Rawls (1971: 19) It is their status as judgments that makes them open to revision as the ‘Socratic’ process of seeking reflective equilibrium proceeds. Thomas Scanlon (2003: 149) One seems forced to choose between the picture of an elephant which rests on a tortoise (What supports the tortoise?) and the picture of a great Hegelian serpent of knowledge with its tail in its mouth (Where does it begin?). Neither will do. For empirical knowledge, like its sophisticated extension, science, is rational, not because it has a foundation but because it is a self-­ correcting enterprise which can put any claim in jeopardy, though not all at once. Wilfrid Sellars (1956: 170)

Abstract  This chapter introduces the Rawlsian paradigm of political legitimacy and pays special attention to the strictly political version of liberalism that Rawls defends in Political Liberalism. My goal is to highlight the ambiguities of his model and to propose a justificatory strategy for a strictly political conception of liberalism that reaches beyond the path envisaged by Rawls himself. My strategy revolves around the attempt to properly spell out the implicit epistemic assumptions of the Rawlsian justificatory approach. I argue, pace Rawls, that political liberalism cannot be robust vis-à-vis different theories of justification, because it is required that, as theorists, we take a stance regarding the epistemological framework we employ while developing a specific theory of political legitimacy. My proposal is that a modest approach in political epistemology expresses the best scheme available to us − as moral agents constrained by the limits of our rationality − for establishing a normatively binding, and yet realistic, procedure of justification for political institutions and practices. © Springer Nature Switzerland AG 2023 F. Liveriero, Relational Liberalism, Philosophy and Politics - Critical Explorations 24, https://doi.org/10.1007/978-3-031-22743-1_2

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Keywords  Political liberalism · Three justificatory stages · Overlapping consensus · Coherentism · Reflective equilibrium This chapter introduces the Rawlsian paradigm of political legitimacy and pays special attention to the strictly political version of liberalism that Rawls defends in Political Liberalism (1993). I share many of Rawls’s goals and I believe his paradigm is still the most consistent account of a liberal political conception of justice introduced in the literature. Yet, my aim in this chapter is neither reconstructive nor defensive (shielding Rawls’s account from critics). Rather, starting from Rawls’s theoretical background, my goal is to highlight the ambiguities of his model and to propose a justificatory strategy for a strictly political conception of liberalism that reaches beyond the path envisaged by Rawls himself. In the first section I outline Rawls’s justificatory strategy, suggesting a revised interpretation for the justificatory role played by two fundamental concepts of his theory: the freestanding justification and the notion of the overlapping consensus. Then, in Sects. 2.2 and 2.3, criticizing Rawls’s attempt to avert any epistemic analysis while defending his justificatory paradigm, I spell out the implicit epistemic assumptions of the Rawlsian model. I argue, pace Rawls, that political liberalism cannot be robust vis-à-vis different theories of justification, because it is required that, as theorists, we take a stance regarding the epistemological framework we employ while developing a specific theory of political legitimacy. My proposal is that a modest approach in political epistemology expresses the best scheme available to us − as moral agents constrained by the limits of our rationality − for establishing a normatively binding, and yet realistic, procedure of justification for political institutions and practices.

2.1 Rawls’s Political Turn Famously, John Rawls has claimed that the main differences between his two main books, A Theory of Justice (1971, henceforth TJ) and Political Liberalism (1993, henceforth PL), stem from the fact that in TJ he did not properly distinguish a moral doctrine of justice, with a general application, from a purely political conception of justice (PL: xiii–xxxiv). In PL Rawls clearly states that a conception of justice “should be, as far as possible, independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm” (PL: 9). Therefore, in this second book he wants to properly answer the following question: “as to how citizens, who remain deeply divided on religious, philosophical, and moral doctrines, can still maintain a just and stable democratic society” (PL: 10). In an attempt to apply “the principle of toleration to philosophy itself” (PL: 10) Rawls develops a conception of justice that, being freestanding and abstaining from metaphysical and epistemic analyses, can be publicly justified, as reasonable citizens ought to reach an agreement only over political matters (Rawls, 1974, 1985, 1993), while they are free to keep disagreeing about their private comprehensive conceptions of the good life.

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Starting from his works of the 1980s (1980, 1985, 1987), Rawls has been specifying a conception of liberalism that gradually has been letting go of any metaphysical or epistemic analysis, in order to work out a strictly political conception of justice. The underlying rationale for this strategy derives from the fact that Rawls, in an act of self-criticism, admits that some of the central theses of TJ require revisions. Rawls acknowledges that in TJ he did not properly distinguish between, on the one hand, the attempt to publicly legitimize a specific conception of justice and, on the other hand, the goal of ensuring the stability for the right reasons of a well-­ ordered political society.1 Indeed, in the third part of TJ, Ends (347–514), Rawls has argues that the stability of a well-ordered society is assured by establishing a connecting between the procedure for the selection of the principles of justice (that is, the original position) and a specific doctrine of moral psychology. By contrast in PL, the acknowledgment of the “fact of pluralism” (PL: 36) imposes an overall revision of the justificatory strategy. Rawls here claims that a political conception of justice, in order to be publicly justifiable, cannot be defined and legitimated as a comprehensive doctrine tout court. Rawls is now committed to the attempt to provide a strictly public justification of his conception of justice, a justification that appeals to public reasons that can be compatible with the comprehensive doctrines privately held by reasonable citizens. Granted that pluralism is not interpreted simply as a factual circumstance of contemporary multicultural societies, but is instead defined as “the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime” (PL: xvi), Rawls then claims that the justificatory strategy, to prove successful notwithstanding the deep disagreement that characterizes political societies, should abstain from any reference to controversial issues, such as metaphysical and epistemological disputes. Rawls in PL focuses his attention on justificatory arguments that, according to this new strategy, should prove to be neutral with regard to different theories of truth, metaphysical approaches and epistemological theories of justification.2 Furthermore, the justificatory arguments introduced in support of the political conception should avoid any reference to a specific comprehensive doctrine. According to Rawls, the philosophical arguments that grant the justification of a political conception should  Rawls (1993, 1995) distinguishes between the stability for the right reasons and modus vivendi. If the latter is the case, then “society’s stability depends on a balance of forces in contingent and possibly fluctuating circumstances,” (1995: 147). On the contrary, stability for the right reasons is reached when citizens are motivated to support a theory of justice thanks to the achievement of a reasonable overlapping consensus. 2  “The aim of justice as fairness, then, is practical: it presents itself as a conception of justice that may be shared by citizens as a basis of a reasoned, informed, and willing political agreement. It expresses their shared and public political reason. But to attain such a shared reason, the conception of justice should be, as far as possible, independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm. In formulating such a conception, political liberalism applies the principle of toleration to philosophy itself. The religious doctrines that in previous centuries were the professed basis of society have gradually given way to principles of constitutional government that all citizens, whatever their religious view, can endorse. Comprehensive philosophical and moral doctrines likewise cannot be endorsed by citizens generally, and they also no longer can, if they ever could, serve as the professed basis of society,” Rawls (PL: 9–10). 1

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be employing reasons that are ‘public’, that is, reasons that avoid the appeal to partisan arguments that at least some members of the constituency would not be able to accept, since these arguments would result incompatible with their systems of beliefs and values. In contexts of entrenched disagreement, Rawls argues, citizens, in order to reason together in a fruitful way, have to restrain themselves from publicly appealing to private reasons,3 which might not have any normative force for other citizens who do not share the same conception of the good. It follows that political institutions and democratic decisions cannot be justified appealing to partisan reasons or to a sectarian conception of the good, otherwise the overall justificatory project would run afoul of the liberal ideals (for various analyses on these topics, see Freeman (ed.) 2003). A fundamental difference between TJ and PL stems from Rawls’s new awareness that there are facts of political reality (such as the fact of pluralism or the existence of unreasonable people) that an adequate theory of justice should deal with. Rawls then tries to establish a model of political legitimacy that addresses the real circumstances of justice, rather than focusing primarily on the production of justificatory arguments that should be action-guiding regardless of specific circumstances of implementation, as they are conceived as ideal and universalizable. Rawls’s main goal in PL is to provide a full justification for a strictly political conception of liberalism starting from the ‘here and now’ of contemporary political societies. Rawls’s ‘political turn’ has been criticized by many authors for its alleged theoretical weakness (Cohen, 2003, 2008; Dworkin, 2000; Estlund, 1998; Galston, 2002; Gaus, 1995, 1996; Habermas, 1995; Hampton, 1989; Neal, 1990; Sandel, 1982; Raz, 1990; Sen, 2009; Wenar, 1995). Notwithstanding the deep differences between these thinkers, they all criticize Rawls claiming that the method of avoidance4 that he employs in PL entails a lack of normative force for the whole justificatory project. Some authors (Cohen; Dworkin; Galston) have raised concerns about the ability of strictly political versions of liberalism, approaches therefore detached from any reference to a specific comprehensive doctrine (or metaphysical theory), to be able to provide compelling justificatory reasons to individuals. Other authors (Estlund; Gaus; Habermas; Raz) wonder whether it is actually possible to provide a thorough account of public justification avoiding any specific analysis of the epistemic theory that backs up the justificatory strategy itself. Some authors (Hampton; Sandel; Sen) have been concerned with the motivational issue, claiming that if the justification of political principles cannot refer to comprehensive beliefs, although such beliefs are those that citizens hold more strongly within their systems of beliefs and values, then the attempt to grant stability for the right reasons to the political system is doomed to fail.

 This interpretation of Rawls’s proposal specifically refers to PL (1993), while, as we shall see, Rawls himself loosened the public reason requirements in Rawls (1997). 4  “The hope is that, by this method of avoidance, as we might call it, existing differences between contending political views can at least be moderated, even if not entirely removed, so that social cooperation on the basis of mutual respect can be maintained,” Rawls (1985: 231). 3

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As clearly appears from the brief collection of critiques that I have just cited, Rawls’s proposal for a strict political liberalism is very engaging, but also troubling for many thinkers. In the next sections my goal is firstly to re-frame the Rawlsian proposal along the theoretical coordinates I spelled out in the introduction. Then, I will be able to tackle some of these criticisms more properly, sometimes to ultimately rebut them, for some others to actually draw some positive insights from them. Briefly, my main critique is that the account of political legitimacy defended by Rawls in PL is hostage of tensions that are intrinsic to the justificatory framework of liberalism itself. Being probably the most consistent and eloquent paradigm of political liberalism in the contemporary literature, it makes sense that the Rawlsian account of political legitimacy falls prey of the justificatory dilemma I spelled out in the introduction. My solution for remaining loyal to the Rawlsian enterprise, while avoiding getting stuck in the justificatory dilemma, is first of all to take a stance regarding what I believe is the most adequate epistemological framework for supporting the liberal strategy of public justification in contexts of deep disagreement. My proposal is that a modest approach in political epistemology expresses the best scheme available to us − as moral agents constrained by the limits of our rationality − for establishing a normatively binding, and yet realistic, procedure of justification for political institutions and practices.

2.1.1 Continuism vs Discontinuism In order to clarify how the justificatory dilemma affects Rawls’s strictly political account of liberalism, it is relevant to first introduce a distinction between two opposite strategies for dealing with pluralism that have been employed by different liberal theorists in the last 30 years. Traditionally, to deal with the issue of irreducible pluralism, liberal theories have provided two different answers: (a) the discontinuist-­ political strategy and (b) the continuist-comprehensive strategy. (a) The discontinuist-political strategy (Ackerman, 1983; Larmore, 1996, 2008; Quong, 2011; Rawls, 1985, LP) maintains that liberalism, in order to properly respect the fact of pluralism and the autonomy of the citizens, should avoid any reference to epistemic, metaphysical and ontological disputes. The justification of liberalism should not rely on the definition of a comprehensive version of liberalism, a specific liberal conception of the good that citizens should adhere to. In following this strategy, political liberalism proves to be discontinuous in respect to the moral, more encompassing, dimension of practical reasoning. (b) The continuist-comprehensive strategy (Dworkin, 1995, 2000; Galston, 1980; Raz, 1985, 1986), instead, maintains that liberalism should be developed in the terms of a comprehensive moral doctrine tout court, otherwise it would lack the necessary normative force. According to this perspective, sound principles of justice can only be developed starting from normative ideals of the good life that are justified through reference to a specific moral comprehensive doctrine. In this regard, according to a continuist perspective, the right and the good can both be subsumed under the same thicker moral theory.

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2  Political Legitimacy Under Epistemic Constraints Both strategies try to find reasons that people who are engaged and committed in their private lives have for taking up the neutral and austere political perspective of liberalism. Both aim to show how people of diverse substantive ethical convictions can unite in liberal politics. The difference lies in the attitude each encourages people to take toward these convictions. Discontinuity, exemplified in the social contract tradition, asks them to regard the most profound and abstract of these – those Rawls describes as forming a comprehensive ethical view – not as abandoned or renounced but rather as bracketed or set aside on political occasions. […] The strategy of continuity assumes, on the contrary, that all one’s ethical convictions are available in politics, that liberal politics follow not from setting some of these aside but on the contrary from giving full effect to the most comprehensive and philosophical convictions among them. On this view, ethics and politics are intertwined so that some of the most far-reaching questions about the character of the good life are political questions too. (Dworkin, 1995: 208)

These two strategies respond in completely opposite ways to the dilemma of liberalism. On the one hand, the discontinuist strategy tries to achieve an agreement among citizens on political principles as broad as possible, thanks to a procedure of justification that avoids any reference to values, concepts and principles that are not strictly political. In this sense, this strategy prioritizes inclusivity over the philosophical-­normative dimension of legitimacy. On the other hand, the continuist-­ comprehensive strategy stresses that justifying a political conception avoiding any references to moral ideals and values that citizens strongly hold within their private sets of beliefs is not simply illegitimate, but actually quite unrealistic (both for moral and epistemic reasons). According to the continuist strategy, a strictly discontinuous version of liberalism would end up imposing a schizophrenic attitude on citizens, since they would not be allowed to appeal to non-public reasons when deliberating political issues.5 I believe that both these strategies shed a light on something true about political justification, yet both are too extreme in their conclusions. The discontinuist approach reflects an awareness of the challenges posed to liberalism by contemporary multicultural democracies. Imposing homogeneity in highly diverse societies is impossible (and indeed not desirable in the first place), and justifying liberalism as the best comprehensive doctrine available would run against the principle of respecting the evaluative autonomy of reflexive agents. In this sense, theorists that defend the discontinuist strategy fully respect the role played by disagreement as one of the grounding aspects of liberal democratic settings. And yet, the continuist paradigm rightly underscores that the discontinuist strategy risks a motivational deficit, since it refuses to appeal to comprehensive values that characterize the moral perspective of citizens. It follows that a strictly discontinuist strategy would have a hard time achieving stability for the right reasons, since the loyalty of citizens would be  Rawls is well-aware of this risk (PL: 216): “I now turn to what to many is a basic difficulty with the idea of public reason, one that makes it seems paradoxical. They ask: why should citizens in discussing and voting on the most fundamental political questions honor the limits of public reason? How can it be either reasonable or rational, when basic matters are at stake, for citizens to appeal only to a public conception of justice and not to the whole truth as they see it? Surely, the most fundamental questions should be settled by appealing to the most important truths, yet these may far transcend public reason!” 5

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granted referring to reasons that they do not properly consider ‘theirs’. The priority of justice over the different conceptions of the good is hard to achieve by appealing to neutral reasons that no citizens have strong motivations to fight for. In order to resolve this motivational deficit, the continuist strategy starts by highlighting the role that the comprehensive doctrines privately maintained by citizens play in their deliberative processes. It is true though that this is a workable strategy for fully justifying liberalism just when referring to a constituency of already loosely liberal citizens. In fact, for the political conception to prove continuous with the comprehensive doctrines held by citizens, it is required that citizens’ sets of moral beliefs already include, at least vaguely, liberal values. Hence, the continuist strategy reduces the scope of liberalism to less-than-an-inclusive-constituency. It might reach a more stable – and probably coherent – justification, while including fewer individuals. For these reasons, I see a risk of parochialism, if not illiberalism, in a perfectionist version of the continuist strategy that justifies liberalism as a fully-­ fledged comprehensive moral doctrine. Ronald Dworkin, in his essay “Liberal Community” (2000: 211–236), argues in favor of the continuist strategy. According to Dworkin, his approach does not blur the distinction between a political and an ethical theory, since the priority of the right over the good is assumed as a fundamental tenet. However, Dworkin claims that the traditional justificatory strategy of liberalism has been putting too much attention on the issue of neutrality. Going back to the religious wars that set fire to Europe around the sixteenth and seventeenth centuries, it is true that liberalism has been historically grounded in the division between the private and public spheres and in the appeal to the principle of toleration as the best solution to unsolvable disagreements over moral matters. Dworkin therefore concedes that the liberal tradition has been historically grounded in a discontinuist strategy, since establishing a neutral political solution to conflicts is one of the backbone features of liberalism. By contrast, Dworkin claims that the liberal principles of toleration and neutrality can be justified through the appeal to a normative argument that refers to the notion of the good life. In his “Equality and the Good Life” (2000: 237–284), Dworkin defends a continuist strategy for the justification of political principles. According to this approach, the validity of the principles of justice cannot be assessed if detached from the analysis of different theories of the good life. The validity and action-guiding dimension of political principles derive from the intrinsic value attached to the normative responsibility that every person has for putting effort into accomplishing her ideal of the good life. Dworkin maintains that morality and ethics are strictly interconnected, as they support and explain each other. If a theory of justice requires me to go against my agential responsibility to pursue the good life – along the lines of my personal take on what ‘the good life’ is – then this theory of justice is not fully justifiable. Every person has a responsibility to live an authentic life and the normative category of ‘living well’ applies both to individual morality and public ethics. According to this paradigm, the legitimacy of political principles partly derives from the possibility of reconciling these principles with normatively valid interpretations of the notion of the good life maintained by individuals. Against this background, the strictly political justification of liberalism that is defended by

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Rawls in PL might appear too weak and schizophrenic. The schizophrenic charge maintains that it is both theoretically incorrect (as morality and ethics are necessary intertwined) and practically unreasonable (since it would have a very weak motivational take over citizens) to demand that citizens accept as valid principles of justice that are not compatible with their system of beliefs regarding the good life. The charge of normative weakness follows directly from this. A theory of justice solely justified thanks to the reference to politically neutral arguments, and that maintains a methodological abstinence with regard to the epistemic and metaphysical status of the normative reasons introduced, is always at risk of being overridden by citizens’ commitment to the values and beliefs around the conception of the good life they hold close to their hearts. This criticism by Dworkin of a strictly discontinuist strategy is well-posed. However, I maintain that political liberalism has more to lose than gain from buying the continuist strategy in toto. In the next sections I shall analyze Rawls’s account of political liberalism, a version of liberalism that in introducing different stages of justification, and in stressing the normative role played by the context of implementation of liberal political principles, tries to achieve the positive results of both the discontinuist and continuist strategy, while avoiding their problematic side-effects. In trying to assess how successful Rawls is in his attempt to establish this complex justificatory strategy, I will introduce two of the most famous (and refined) critiques of his model, by Jürgen Habermas and Joseph Raz.

2.1.2 Freestanding Justification and Overlapping Consensus In PL Rawls is aware of the difficulty of reaching stability for the right reasons, since this form of stability can be achieved if and only if a political conception is fully justified vis-à-vis the different non-public perspectives of reasonable citizens involved in political discourse. There are three main theoretical notions that are fundamental for the development of what Rawls calls full justification: normative justification, individual motivation, and public political culture. Understanding the way in which these three issues relate to one another and how they can be systematized into a coherent procedure of justification is the main goal of this section in which I address Rawls’s justificatory strategy. As we have seen, the relation between normative justification and individual motivation is intrinsically tense. Given the fact that the political account of liberalism should provide a justification of its principles that does not rely on parochial reasons, then the motivational force that derives from this strategy is both enhanced and weakened. On the one hand, political liberalism is structured in such a way to result compatible with extremely different comprehensive doctrines held by citizens, therefore proving fully respectful of the fact of pluralism. On the other hand, the shallowness of political arguments introduced for justifying the theory is viewed

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by some as a flaw, since it is difficult to see how a strictly political account of justice can prove motivationally strong enough to trump comprehensive beliefs.6 Rawls is well aware of these difficulties. And it is here that the reference to public culture becomes theoretically relevant. Rawls agrees that it might be too utopian to presuppose that political ideals can stably override personal interests and comprehensive beliefs, since “these doctrines represent what citizens regard as their deepest convictions, religious, philosophical and moral” (Rawls, 1995: 147). From this conclusion follows the recognition of the impossibility of gaining a wide – and publicly justified – consensus over a specific comprehensive version of a theory of justice. But Rawls assumes that citizens who live in a liberal society tend to share  – maybe implicitly – some normative notions drawn from the contextual public culture of that society. The theoretical link between justification and reference to a specific political context has been criticized by many authors and it is indeed quite complex to grasp. In order to understand how the Rawlsian strategy manages to keep together public justification, individual motivation, and a normative appeal to a contextual political culture, I shall illustrate the two main justificatory stages envisaged by Rawls. First, Rawls claims that the justificatory arguments publicly provided in favor of the conception of justice, in order to be respectful of reasonable citizens involved in political deliberation, should be freestanding, therefore not being sensitive to the different comprehensive doctrines held by citizens.7 However, to grant normative force to the justificatory procedure, notwithstanding the impossibility of appealing to comprehensive arguments, Rawls understands the need to anchor the justification of the political paradigm to a common public culture. The possibility that actual reasonable citizens might converge in acknowledging the relevance of a common public background-culture is the contextual wager made by Rawls: if citizens can publicly agree on the normative value of some fundamental organizing liberal ideas, then the political practice of justification can guarantee motivational force and, at the same time, respect the fact of pluralism. Second, Rawls introduces the notion of an overlapping consensus, a consensus in which citizens can agree on the validity of the political conception, but with everyone deliberating from her own comprehensive perspective. The freestanding justification provides strictly political reasons in favor of the political conception as these reasons, being robust vis-à-vis reasonable comprehensive doctrines, are in a

 Fred D’Agostino (1992: 154) perfectly catches the tension intrinsic to the Rawlsian proposal: “Although such a model fares well in relation to the desideratum of motivational force, it has, really, the vices of its virtues, for it secures motivation by ‘pragmatizing’ and therefore does so at the expense of failing in relation to robustness and being forced to ‘trade-off’ inclusiveness and strength against one another.” 7  “A political conception of justice is what I call freestanding when it is not presented as derived from, or as part of, any comprehensive doctrine. Such a conception of justice in order to be a moral conception must contain its own intrinsic normative and moral ideal,” Rawls (PL: xlii). 6

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sense neutral with regard to the different private perspectives of citizens.8 With the overlapping consensus, instead, every citizen is allowed to privately assess the compatibility of the political module with her personal perspective of the good life. At the stage of the overlapping consensus, citizens tend not to share the same reasons in support of the political module, but this is not problematic for Rawls, since neutral reasons in favor of the political conception have already been introduced by the freestanding argument. Many critics have questioned the practical feasibility of the overlapping consensus. This is, in fact, the stage in which, according to the interpretative framework I introduced, the philosophical-normative dimension of legitimacy is reconciled with the motivational requirements expressed by the notion of stability for the right reasons. Consistently with the tensive relation between the two horns of the justificatory dilemma, in the literature we find two conflictual readings of the overlapping consensus. Some authors maintain a non-normative reading of the overlapping consensus, reducing it to the non-problematic description of a socially contingent situation in which liberal citizens happen to agree on the legitimacy of a political conception of liberal justice, everyone starting from her own comprehensive perspective. Agreeing with this weaker reading of an overlapping consensus implies putting in question the overall possibility for political liberalism to establish stability for the right reasons, instead opting for a less demanding, but far more troubling modus vivendi. Indeed, if only already liberal citizens can achieve an overlapping consensus, what kind of overall stability can be reached when we take into consideration illiberal and/or unreasonable citizens as well?9 By contrast, other critics read the overlapping consensus as a demanding justificatory tool, that ends up reaffirming liberalism as a comprehensive political doctrine in competition with others for winning the loyalty of citizens, therefore interpreting the overlapping consensus as incompatible with a strong commitment toward inclusivity (Wenar, 1995). In Chap. 4, I will defend an alternative reading of the overlapping consensus, maintaining that this justificatory tool indeed plays a fundamental role, but for reasons different from those illustrated by Rawls. In order for readers to be able to fully grasp the  Rawls (1985: 224) claims that, although strictly political, political liberalism is still a moral conception. This moral conception is actually thin and neutral vis-à-vis many comprehensive moral concerns, but it is important to stress that it is still a moral conception. Indeed, the political conception cannot be neutral with respect to any model conception possible, since it is partly grounded in the reference to some normative organizing ideas that are latent in the social context of real-world liberal democracies. 9  It is worth mentioning that in recent years a quite wide literature has revised both the normative and pragmatic relevance of modus vivendi agreements (Gray, 2000; Horton, 2010; Sala, 2013; Wendt, 2016a, b). These approaches, starting from the assumption of deep disagreement as a stable feature of democratic settings, criticize political agreement based on consensus as out of reach. They also argue that building a justificatory strategy on the demanding notion of public reason as Rawls does is incompatible with the actual circumstances of politics. They instead defend modus vivendi as a model of agreement that is more consistent with reality and also not necessarily as unstable as envisaged by Rawls. I will look more closely at this approach in Chap. 6. For now, when in Chaps. 1, 2, 3, 4, and 5 I mention modus vivendi, I am referring to the Rawlsian interpretation of this notion. 8

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distance of my proposal from Rawls’s one, I shall now spell out Rawls’s proposal for a justificatory strategy divided into three stages.

2.1.3 A Multi-layered Justificatory Procedure Jürgen Habermas and John Rawls had a famous exchange in the pages of The Journal of Philosophy (1995). In his article “Reconciliation Through the Public use of Reason: Remarks on John Rawls’s Political Liberalism” Habermas claims that he essentially shares Rawls’s main goals, but he criticises the strategy chosen by Rawls for executing the project.10 Habermas focuses his critiques on different and relevant matters (that is, the justificatory role played by the original position; the normative relevance of the overlapping consensus; the relationship between private and political autonomy; the epistemological status of the notion of reasonableness), but in this section, I shall recall only the arguments that put in question the justificatory role played by an overlapping consensus and the critique by Habermas concerning the alleged epistemic weakness of the Rawlsian paradigm. It can be said that Habermas and Rawls in their exchange compete over modesty (Forst, 2012; Liveriero, 2018), trying to prove to each other that their own model is more adequate – and less demanding – that the one defended by the other.11 It is worth noting that a post-metaphysical account of reasoning, such as the one defended by Habermas, implies a refutation of metaphysical analysis not just in the

 “Because I admire this project, share its intentions, and regard its essential results as correct, the dissent I express here will remain within the bounds of a familial dispute. My doubts are limited to whether Rawls always brings to bear against his critics his important normative intuitions in their most compelling form,” Habermas (1995: 110). 11  “Such a procedural moral and legal theory is at the same time more and less modest than Rawls’s theory. It is more modest because it focuses exclusively on the procedural aspects of the public use of reason and derives the system of rights from the idea of its legal institutionalization. It can leave more questions open because it entrusts more to the process of rational opinion and will formation. Philosophy shoulders different theoretical burdens when, as on Rawls’s conception, it claims to elaborate the idea of a just society, while the citizens then use this idea as a platform from which to judge existing arrangements and policies. By contrast, I propose that philosophy limit itself to the clarification of the moral point of view and the procedure of democratic legitimation, to the analysis of the conditions of rational discourses and negotiations. In this more modest role, philosophy need not proceed in a constructive, but only in a reconstructive fashion. It leaves substantial questions that must be answered here and now to the more or less enlightened engagement of participants, which does not mean that philosophers may not also participate in the public debate, though in the role of intellectuals, not of experts. Rawls insists on a modesty of a different kind. He wants to extend the “method of avoidance,” which is intended to lead to an overlapping consensus on questions of political justice, to the philosophical enterprise,” Habermas (1995: 131, emphasis in original). 10

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political domain, but in every human area of reasoning.12 The normativity of the intersubjective deliberative enterprise is derived entirely from the constraints intrinsic to the use of rationality itself and entrenched in communicative action norms. The discourse principle ensures that any substantive principle is already being justified through deliberative discourse. In this regard, the discourse principle does not presuppose a moral theory of any kind. The major difference between the Rawlsian and Habermasian paradigms is that in PL, as I briefly noticed in the previous section, the initial credibility – and desirability qua feasibility – of the principles of justice hinges on a contextual reference to some shared ideals, whereas for Habermas the normative force of the paradigm is entirely derived from the universal validity of the communicative action.13 Within the Rawlsian paradigm citizens’ commitment in respecting the publicly legitimated conception of justice stems from the fact that the principles of justice are modelled reflecting background conceptions of a well-­ ordered society and of citizens as free and equal on which reasonable members of the constituency agree upon. Rawls, in fact, argues that reasonable citizens might be motivated to respect specific normative constraints, once it has been shown them that such constraints are congruent with the organizing ideas that are shared in the public culture of that society. Habermas strongly criticizes this reference to a political context within Rawls’s paradigm, claiming that a justificatory procedure theoretically supported by a reference to a specific historically developed context cannot “accomplish more than merely the hermeneutic clarification of a contingent tradition” (1995: 120). In stressing the distance between his and Rawls’s model, Habermas claims that his communicative theory of action, and the deliberative political paradigm that follows from it, does not need to refer to any shared conception or notion. Rather, the overall normativity of Habermas’s paradigm is grounded in the rational practice of law-making and in the intersubjective exchange of reasons among agents that are able to abide by the discourse principle. Habermas defines his framework as transcendental – in the Kantian sense – from the beginning, for the normativity that compels agents to respect each other derives from the sheer fact that they are engaging in a discursive practice, because such a practice involves a set of universal norms that governs the process of raising and contesting validity claims. Even though the transcendental apparatus that supports Habermas’s account aims at codifying universal norms of intersubjective interactions, Habermas claims that his model provides the most adequate approach of political legitimacy in balancing ambitious goals with a general strategy of justificatory modesty. Indeed, the major critique that Habermas raises against political liberalism is that the account of

 “In a pluralistic society, the theory of justice can expect to be accepted by citizens only if it limits itself to a conception that is postmetaphysical in the strict sense, that is, only if it avoids taking sides in the contest of competing forms of life and worldviews. In many theoretical questions, and all the more so in practical questions, the public use of reason does not lead to a rationally motivated agreement,” Habermas (1996: 60). 13  For exhaustive analyses of the differences between the justificatory paradigms defended respectively by Habermas and Rawls, see Finlayson and Freyenhagen (eds.) (2013); Hendrick (2010) and McCarthy (1994). 12

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political legitimacy defended in PL does not leave enough room for the actual practice of democracy. According to Habermas, if too many normative aspects of the theory are determined before the actual democratic procedure of exchanging reasons is carried out, then the theory illegitimately favors the institutional and constitutional aspect of politics, overlooking the actual democratic practice in which citizens publicly deliberate (and clash) over political matters. Habermas claims that within the Rawlsian paradigm the relevant normative arguments are introduced and justified at the ideal stage, where actual citizens’ opinions and preferences play no role. Then, these citizens will find themselves living in an institutionalized setting in which they are subjected to norms that they have not contributed at justifying.14 By contrast, Habermas wants to establish a model in which the actual practice of political deliberation, granted the respect of the universal discursive principle, can then be unrestrained. These criticisms raised by Habermas are in my opinion well posed and allow me to introduce two lines of argument that I will develop in the next chapters. First, in order to rescue Rawls’s theory from the charge of epistemic weakness, in the second part of this chapter I shall introduce and discuss a specific theory of epistemic justification, coherentism, that I claim is the epistemological theory that, implicitly, Rawls employs in his determination of the method of reflective equilibrium and in his development of the notion of overlapping consensus. Second, after having clearly exposed the epistemic circumstances of justice in Chap. 3 (an analysis that Rawls decides to not engage with, in order to keep his theory strictly political), I will introduce my own proposal about the justificatory role played by the ideal and nonideal stages, in this way indirectly replying to some of Habermas’s concerns. For now, I shall focus on Habermas’s deflationary view of the overlapping consensus. According to Habermas, in PL Rawls is not clear enough in characterizing the specific justificatory role played by the overlapping consensus within his wider justificatory project. Given this inadequate definition, Habermas raises some doubts about the actual justificatory power of an overlapping consensus, suggesting that the justificatory duties are mostly carried out by the conceptual artifice of the original position, whereas the stage of the overlapping consensus only addresses the difficulties concerning stability and social unity.15 Habermas maintains that it is theoretically inconsiderate to ground the structure of justification on the possibility that an actual overlapping consensus is possible within contemporary highly divided  “For the higher the veil of ignorance is raised and the more Rawls’s citizens themselves take on real flesh and blood, the more deeply they find themselves subject to principles and norms that have been anticipated in theory and have already become institutionalized beyond their control. In this way, the theory deprives the citizens of too many of the insights that they would have to assimilate anew in each generation,” Habermas (1995: 128). 15  Habermas (1995: 121, emphasis in original) states: “Because Rawls situates the ‘question of stability’ in the foreground, the overlapping consensus merely expresses the functional contribution that the theory of justice can make to the peaceful institutionalization of social cooperation; but in this the intrinsic value of a justified theory must already be presupposed. From this functionalist perspective, the question on whether the theory can meet with public agreement […] would lose an epistemic meaning essential to the theory itself.” 14

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societies. Even assuming for the sake of the argument that some sort of overlapping consensus is actually reachable, still this achievement cannot be granted a priori and certainly cannot carry much normative weight. Habermas concludes that the role played by the overlapping consensus is merely instrumental, being focused in demonstrating that some members of the polity do, in fact, share some common ideals and moral principles. Habermas is right in stressing that if the stage of an overlapping consensus is simply focused in granting stability, then political liberalism as a theory of legitimacy is not able to maintain the essential distinction between the quest for mere stability (where the actual acceptance of principles by real citizens becomes the main focus) and the attempt to establish normatively binding political principles of justice (therefore looking at establishing the ideal acceptability of such principles).16 This critique goes along with a review, articulated by Habermas, of Rawls’s decision to employ the predicate ‘reasonable’ in place of the predicate ‘true’. Habermas argues that Rawls looks for modesty in the wrong direction, introducing a sharp distinction between reasonableness and truth. This move, one of the fundamental features of the political turn in Rawls’s work, endangers the very quest for an objective account of justice, because the entire PL project is then characterized by an epistemic weakness. For Habermas, the reasonable could be interpreted in two ways: (i) As a synonym for moral truth (there would be a mere lexical difference with truth). (ii) As the ability, shared by reasonable citizens, to acknowledge and respect the fact of pluralism. Reasonableness is the aspect of human reasoning that provides reasons for explaining why reasonable disagreement among agents is a genuine possibility. According to this interpretation, reasonableness is both a moral and epistemic virtue that motivates reasonable agents to deliberate publicly without trying to impose their own comprehensive doctrine on the whole constituency, therefore limiting themselves to the use of the predicate reasonable rather than the predicate truth while publicly evaluating different political conceptions. Habermas claims that Rawls favors the second interpretation of reasonableness (b), even though he never provides a fully-fledged account of the epistemic connotations of the term reasonable. Keeping the epistemological analysis in the background, employing epistemic notions mostly implicitly, Rawls, according to Habermas, fails to provide an exhaustive account of his justificatory strategy. Habermas concludes that within the Rawlsian paradigm, the predicate reasonable ends up having priority over the predicate truth. For Habermas the justificatory modesty employed by Rawls and attested by his willingness to refer to reasonable conceptions of justice, rather than attempting to  “The risk here is of Rawls confusing overlapping consensus as a normative device able to support moral stability and overlapping consensus as an empirical fact able to support just social stability. In these terms, the overlapping consensus would oscillate between a ‘cognitive role’ and a mere ‘instrumental role’,” Maffettone (2010: 182). 16

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establish a true conception of justice, involves a breakdown between the question of acceptability of a norm (as adequately justified) and the factual acceptance of a norm by a specific constituency. As the reader should recall, this is exactly one way to specify the justificatory dilemma of liberalism: the inner tension between the horn that gives priority to establishing normative criteria of acceptability and the horn that instead focuses on the possibility of motivating real citizens in adhering to a liberal conception of justice. Habermas tries to resolve the justificatory dilemma with a different strategy from Rawls. He maintains that starting from unconstrained disagreement – given the post-metaphysical context in which we are living – through the communicative action, and the respect of the discourse principle, it is possible to reach a superior stage of impartiality where epistemological abstinence is prevented, since the justified principles are definable as truth-claims, where truth is defined as cognitive validity (Maffettone, 2010: 180–184). By contrast, Rawls’s way out from the dilemma relies upon the possibility of establishing a stable overlapping consensus among agents that support different comprehensive doctrines and yet converge on the validity of the political module. Thanks to the exchange with Habermas, Rawls realizes that this task can be accomplished in an overlapping consensus only if this stage is part of a complex justificatory strategy composed of three stages. Rawls, in replying to Habermas, begins clarifying that the procedure of justification should take into consideration three different viewpoints: the perspective of parties in the original position; the perspective of an idealized constituency of citizens and the point of view of reasonable citizens here and now. Naturally, the justification that must be provided with regard to these agential standpoints differs. In introducing these different agential viewpoints, Rawls displays that providing sound reasons in favor of a conception of justice does not exhaust the tasks of the justificatory enterprise, as a full justification ought to account for the way in which these reasons can be supported by citizens, therefore proving compatible with the sets of beliefs, values and ideals they privately maintain.17 Consequently, Rawls distinguished between three stages of the justificatory project. All the three stages are necessary, and need to be fulfilled in a specific order, for the political conception to be fully justified vis-à-vis real-world citizens private perspective and conceptions of the good life. Rawls’s aim is to develop a normative argument regarding the reasonable constraints that a majority of members of the political constituency would be willing to accept, granted that these constraints do not impose on them a schizophrenic  About the different justificatory tasks laid out in PL, it is worth noting that here Rawls deeply reduces the justificatory role of the original position, that in TJ carried most of the normative weight. Instead, starting from his works of the 80s, and specifically in “Kantian Constructivism in Moral Theory” (1980) the original position is defined as a device of representation, and its overall justificatory importance results abated. “As a device of representation the idea of the original position serves as a means of public reflection and self-clarification. It helps us work out what we now think, once we are able to take a clear and uncluttered view of what justice requires when society is conceived as a scheme of cooperation between free and equal citizens from one generation to the next,” Rawls (PL: 26). 17

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attitude toward their private sets of beliefs (that is, as private citizens they are loyal to these values, whereas as citizens it might be requested that they disown them in terms of supporting the political conception). Rawls believes that dilemmatic outcomes and too taxing requests toward citizens can be avoided if it is possible to show that reasonable citizens tend to agree  – sometimes just implicitly  – on the normative values of some fundamental organizing ideas around which the notion of social justice revolves. One of the main goals of the justificatory strategy of political liberalism is to uncover these ideas that are latent in social contexts, that he refers to as “model-conception” (1980: 520). A political conception should not simply be justified thanks to an adequate selection procedure. It is also necessary to show that this political conception is legitimate since it is consistent with the organizing ideas that are shared in the public culture of that specific society. Rawls believes that the chance of reconciliation between public reasons for political deliberation and citizens’ non-public reasons depends upon the possibility of achieving a collective loose agreement over the validity (and over the action-guiding property) of some specific organizing ideas that inform the cultural capital of democratic societies.18 From these loosely shared organizing ideas, then, it is possible to infer some reasoning constraints that citizens ought to respect when deliberating over justice. These constraints, being inferred from a familiar public culture, rather than justified solely through abstract reasoning, appear to be more easily reconcilable with the different comprehensive conceptions privately maintained by citizens.19 Now, this appeal to a contextual analysis as a fundamental aspect of the justificatory strategy has been highly criticized by many authors (Habermas included, as we saw) and establishes one of the main differences between PL and TJ. Different critics describe this reference to a specific historical and cultural context in relativistic terms, claiming that the alleged relativity invalidates the overall justificatory force of the Rawlsian project. I maintain that these criticisms are able to hit a ‘hidden spot’ within the Rawlsian paradigm. In refusing to spell out − and defend − the epistemic assumptions backing his theory, Rawls has left his theory vulnerable to

 In Chap. 4 I will discuss Sebastiano Maffettone’s defense (2010) of the fundamental normative role played by the background organizing ideas within Rawls’the political liberalism. Maffettone claims that these organizing ideas play a double justificatory role: (i) proving the compatibility between a liberal conception of justice with these ideas is important for assuring adequate motivational force to the overall liberal project; (ii) looking at actual institutional practices, we can infer that these shared ideas play a legitimating role as well, since they provide real citizens with (bottom-up) reasons to comply with political principles. 19  In a sense, this loose agreement over the reconciliatory value of some specific organizing ideas inferred from the public culture becomes a transcendental prerequisite for developing an adequate normative argument in favor of a political conception that can manage the fact of pluralism without the need for drastically reducing disagreement among citizens. This transcendental role played by liberal model-conceptions is sustained by a Kantian approach to normativity. Rawls defends a version of Kantian contructivism in his Dewey Lectures (1980) and in the third lecture of PL (89–120). For a wider analysis of Kantian constructivism and its influence on Rawls, see Bagnoli, 2001, 2002, 2013. 18

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the charge of relativism. I will try to close this theoretical gap in the next section of this chapter. In concluding this section, I shall briefly analyze the three stages of justification that Rawls illustrates in his reply to Habermas. All three of these stages of justification are necessary for establishing a shared consensus over the legitimacy of the principles of justice and achieving stability for the right reasons. The three stages of justification are: 1. Pro tanto justification 2. Full justification 3. Public justification 1. The pro tanto justification is the first stage and is the one in which the political conception is justified by appealing only to freestanding arguments. Despite this epistemological (and deliberative) limitation, the pro tanto justification is still complete in its own way. The pro tanto justification provides reasons in support of the political conception thanks to a philosophical argument that imposes some specific abstractions on the depiction of the circumstances of justice and some idealizations about citizens’ intellectual capacities, information sets, and motivational drive. These abstractions allow to reason on matters of justice avoiding contextual references and ideological limitations, therefore establishing general principles of justice for the basic structure of liberal societies whose justification can be seen as universalizable. The pro tanto justification is perfectly expressed by an argument as the original position, in which the parties are supposed to all reach the same conclusion about which principles of justice to select. The original position provides a fully normative and philosophically adequate justification of the political conception. This justification is robust vis-à-vis different comprehensive doctrines and private values, since citizens, under the veil of ignorance, have good reasons for selecting liberal principles of justice over other options. The original position achieves an intersubjective neutrality that allows the parties to all share the same freestanding reasons in support of the political conception. In this sense, the pro tanto stage outlines a justificatory strategy that is clearly discontinuous, since all the values that are not strictly political are bracketed through the specific deliberative constraints imposed by the device of representation. Given these onerous abstractions employed in the development of the justificatory argument, it appears that the pro tanto justificatory stage cannot resolve the justificatory dilemma on its own. Rawls is aware that it would be illusory to assume that members of real-world societies will accept as definitive this freestanding justification, therefore respecting the priority of the right over the good. Even if the device of representation of the original position builds up a reasonable structure of justification for some general principles of justice, still this justification, developed in strictly political terms, is completely detached from the citizens’ comprehensive standpoints. For this reason, it is likely that political values justified through arguments developed at the pro tanto stage would be trumped by the moral values and non-public reasons that citizens maintain privately.

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2. Thus, to avoid the impasse of a never-ending conflict between private comprehensive doctrines and the political values justified by a deliberative procedure related to a device of representation (that involves strong idealizations), Rawls introduces the second level of justification: full justification. At this level, thus, “it is left to each citizen, individually or in association with others, to say how the claims of political justice are to be ordered, or weighed, against nonpolitical values. The political conception gives no guidance in such questions, since it does not say how nonpolitical values are to be counted. This guidance belongs to citizens’ comprehensive doctrines” (Rawls, 1995: 143). It is at this level that principles of justice already justified by a freestanding argument should demonstrate their ability to be reconciled with various systems of beliefs and values held by reasonable members of the constituency. It appears then that this second stage of justification adopts a continuist strategy, as it is demanded of every reasonable citizen to find a personal consistency between the political module and her comprehensive system of beliefs. This justificatory effort is conducted by citizens individually. Therefore, different citizens might employ different reasons in justifying the political conception, depending on their private perspectives on social justice, moral values and personal interests and preferences. The fact that the theory of justice is defined as exclusively political does not necessarily mean that it can never be possible to establish a process of integration between comprehensive visions and political values. As the same Rawls claims (1995, 143): “even though a political conception of justice is freestanding, that does not mean that it cannot be embedded in various ways into – [...] – the different doctrines citizens affirm.” The stage of full justification focuses on assuring compatibility between the political module and citizens’ different and conflicting standpoints. Rawls’s wager is that it is not just desirable, but also plausible, to assume that a majority of the reasonable members of the demos would be able to reach this full justification of the political conception, since they prove motivated to systematize this conception along the moral directives of their comprehensive doctrines. Thus, whereas the freestanding justification of the pro tanto stage is universally discontinuous vis-à-vis conflicting opinions of citizens, the continuity of the political module and citizens’ private perspectives is established individually by each citizen at the stage of full justification. In this way, political liberalism would result motivationally adequate, because the schizophrenic risks are avoided whenever reasonable citizens reach the stage of full justification, finding a personal balance between political and non-­political values. As I will show in the next sections of this chapter, the possibility of achieving full justification relies on the deliberative ability of citizens to reason according to a coherentist model of justification, reaching a reflective equilibrium between their moral considered convictions and the principles of justice pro tanto justified.20

 “Only when there is a reasonable overlapping consensus can political society’s political conception of justice be publicly, though never finally, justified. This is because granting that we should give some weight to the considered convictions of other reasonable citizens, general and wide reflective equilibrium with respect to a public justification gives the best justification of the political conception that we can have at any given time,” Rawls (1995: 144–145). 20

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3. Finally, public justification. This last stage of justification is accomplished thanks to the actions of the whole society and, in Rawls’s view, constitutes the regulative idea behind the entire enterprise of political liberalism. The idea of public justification constitutes a fundamental feature of political liberalism in relation with three other basic notions: (i) a reasonable overlapping consensus; (ii) stability for the right reasons; (iii) search for political legitimacy (along the lines I expounded in the introduction). Even this third stage, although the most robust one reachable under the constraint of the nonideal circumstances of real-world political contexts, provides a justification that is never absolute, given the tensions that are intrinsic to political approaches to liberalism. At the stage of public justification, since full justification has already been achieved, every citizen, ideally speaking, is ready to commit herself to the practice of public reason. This means that the public justification stage is characterized by deliberative interactions by citizens that are able to reason together over political matters employing public reasons that are accessible to every reasonable citizen. There would be a willingness, from everyone, to respect and consider every other person and the comprehensive doctrine that each holds as a reasonable way to contribute to the formation of a public culture.21 “This basic case of public justification is one in which the shared political conception is the common ground and all reasonable citizens taken collectively (but not acting as a corporate body) are in general and wide reflective equilibrium in affirming the political conception on the basis of their several reasonable comprehensive doctrines” (Rawls, 1995: 144). Rawls judges this third stage as the best realization of the most complete justification that can be provided within a liberal society that wants to publicly deliberate over political matters while accepting and respecting the fact of pluralism. Reasonable citizens that have established a stable conciliation between their private perspectives and the political domain are at this stage able to adhere to the constraints of public reason. This result, I shall argue, depends upon a coherentist procedure of justification in which political principles are balanced against the other beliefs that citizens hold privately. Developing an adequate illustration of the coherentist paradigm will be the object of my analysis in Sects. 2.2 and 2.3 of this chapter.

 This interpretation of the public justification stage is consistent with the last, and much more open to the various voices present in the public arena, version of the practice of public reason that Rawls illustrates in his “The Idea of Public Reason Revisited” (1997). 21

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2.1.4 Stability in the Face of Deep Disagreement In the previous section I have outlined the three different stages of justification that Rawls develops in his exchange with Habermas. I believe that the Rawlsian proposal cannot be fully understood without spending some time reasoning upon these three stages of justification. I maintain that structuring the justificatory paradigm in different stages that have different goals and refer to different constituencies (that is, the idealized one of the parties in the original position; the more limited constituency of reasonable citizens; real-world citizens) is the partial solution that Rawls introduces in order to overcome the inner tension between the philosophical-­ normative and realist desiderata of his political liberalism. Defending a justificatory strategy that works through different stages allows to underscore the freestanding dimension of political justification, and yet, to look for reconciliation with agents’ comprehensive perspectives. What is most interesting is that the full justification stage asks citizens to reason on their own about the possibility of reaching a reconciliation between their non-public conceptions and the political module. For this reason, Rawls envisages a second stage of justification where citizens should be able to evaluate the political conception from their own personal perspectives. In order for the political module to be robust in relation to the different systems of beliefs held by citizens, it is important to grant the possibility that actual citizens are motivated in supporting such a political module even when they are reasoning without abstaining from their actual sets of moral and political convictions and values. The stability reached thanks to the overlapping consensus would be for the right reasons, since these deliberative processes of reconciliation are not imposed on citizens, but developed by them autonomously. So far, so good. Yet, this illustration of the Rawlsian strategy is too optimistic, since, as it has become clear in my restatement of Habermas’s criticisms of Rawls’s theory, the definition of the notion of the overlapping consensus in PL is not clear-cut enough in defining what kind of justificatory role this stage plays within the wider justificatory paradigm of political liberalism. Consider a scenario in which no citizen reaches a stable reconciliation between her comprehensive doctrine and the political module. What about the legitimation provided by the freestanding justification? Well, it seems to me that from the philosophical-normative perspective the pro tanto justification is still valid, but it completely fails to foster loyalty, since citizens who do not reach a reconciliation between the political conception and their personal views, would hardly comply (for the rights reasons) with political prescriptions and political authority.22 But  Similarly, Samuel Scheffler in his article “The Appeal of Political Liberalism” (1994) claims that the definition of liberalism as political refers to the fact that the justificatory strategy developed in PL indeed introduces a stage that appeals to strictly political arguments. However, the pro tanto justification is necessary, but not sufficient as well to provide full justification for the political module. Indeed, to warrant stability for the right reason a freestanding justification is not enough, since liberalism ought to assess the likelihood that real citizens will accept the pro tanto justification as having legitimating force vis-à-vis their systems of beliefs and moral convictions. Thus the need for the overlapping consensus stage. 22

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then, what about the overlapping consensus? Since each citizen is expected to autonomously evaluates the compatibility of her comprehensive view with the political module, the risk of failure is always present. It appears then that either an overlapping consensus is superfluous to the justificatory procedure, since reasonable citizens will by definition support the political conception, or the overlapping consensus is relevant, but it is hard to believe that actual citizens will stably accept the political conception as congruent with their comprehensive conceptions. It follows that the notion of the overlapping consensus is itself caught up in a dilemma: either being achievable, but superfluous from the normative perspective, or being normatively relevant, but also extremely demanding, therefore unlikely to be described as a realistic goal under the constraints of the actual circumstances of justice. Evaluating the overlapping consensus from the second horn of this dilemma, many critics of Rawls’s project deem this reconciliation as unrealistic, because, allegedly, political liberalism does not provide sufficient reasons to agents for accepting the priority of political principles over the non-political values that are embedded in their different comprehensive views. Given the context of pervasive disagreement of contemporary democracies, the criticism goes, it is hard to believe that a freestanding justification of the political module would prove strong enough to trump personal preferences and moral convictions that characterize agents’ social lives and that shape their identities. Again, the issue at stake is the tensive relation between desirability and feasibility. Clearly the pro tanto justification accounts for the desirability dimension of the political conception. What is not as clear, it is whether the presupposition that reasonable citizens are likely to agree on the value of the political conception in the overlapping consensus provides reasons in support of just the feasibility of the theory or, instead, grants further reasons in support of the overall desirability of the political liberalism project. Taking the justificatory dilemma seriously, it seems to me that the only way out from the dilemma is defending a version of political liberalism for which the feasibility-aptness of the theory is a complementary reason for establishing its desirability.23 Desirability and feasibility become two faces of the same coin: these two dimensions should be distinguished theoretically, but the achievement of one relies upon the fulfilment of the other dimension, and vice versa. In other words, the normative force of the justificatory arguments cannot be hostage to the actual chances that the justified conception is actually accepted by reasonable citizens. And yet, there is a strong intuition – perfectly expressed by reflective equilibrium, as I shall argue later in the chapter  – according to which full justification cannot be reached without assessing the likelihood for the political module to result in compatibility with the majority of the comprehensive views maintained by reasonable citizens. It follows that the main  “Recall Kant’s project: if morality is not chimerical, ‘a phantasm in our brain’, then it must be possible to show that practical reason has a synthetic use, that it can be applied to some objects. For a concept to have reality, it must be applicable. That is, it is not enough to say that such a concept is analytically coherent and intelligible; it must be given an application. In particular, to be objective practical reason must be shown to be applicable to us: the moral law is objective insofar as it is shown to be subjectively applicable,” Bagnoli (2001: 322). 23

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question concerns whether Rawls is able to articulate a justificatory structure in which a strategy of discontinuity on the one hand and a strategy of continuity on the other hand can be reconciled in a coherent and unified system. The theoretical tool through which, according to Rawls, it is possible to achieve this reconciliation is the overlapping consensus. Reaching a stable overlapping consensus is the way for solving the motivational impasse that the acknowledgment of the fact of pluralism has put at the center of our discussion over the desirability and feasibility of political liberalism. According to the common view of the overlapping consensus (Quong, 2011: 165)24 political liberalism as a conception of justice would be in a sense simultaneously justified through two different strategies, one discontinuous – the freestanding justification – and one continuous – the stage of the overlapping consensus (see Fig. 2.1). According to this scheme, the same political conception that has been justified through a freestanding argument (the pro tanto justification) can be defined, thanks to the overlapping consensus (full justification), as reconciled with the individual systems of beliefs maintained by reasonable citizens.

Fig. 2.1  The common view of the overlapping consensus

 Quong (2011: 165) introduces a scheme slightly different from mine. In his scheme the political conception of justice is supported, independently, both by the freestanding argument and by the non-public reasons employed by citizens reasoning from their own comprehensive perspectives. I do not think that this difference is too relevant. Quong was keen to show that to reach a stable overlapping consensus there must be concurrence with both a freestanding justification and a continuist argument that relies on the personal perspectives of citizens. By contrast, I want to focus my attention on the fact that the overlapping consensus is the outcome of a coherentist procedure in which a political conception already justified is shown to be congruent with the systems of beliefs maintained by a majority of (reasonable) citizens. 24

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I maintain that the common view interpretation of the overlapping consensus is not an unfair interpretation of this procedure as far as PL is concerned. Indeed, in PL Rawls does not distinguish specifically enough between the three stages of justification and this imprecision leads to a sort of confusion, since it seems correct to assume that political deliberation aims at demonstrating that political values are in some sense ‘superior’ to non-political values. Critics, then, have an easy target in stressing the unrealistic expectations that Rawls poses in the notion of the overlapping consensus. For this and other reasons, the common view of overlapping consensus, in my opinion, involves various difficulties. First, this reading of the overlapping consensus preserves normative force only limiting the justificatory strategy to a constituency of reasonable agents. Naturally, this theoretical move to limit the constituency of justification must already be justified independently, therefore involving further difficulties. Conversely, if such a delimitation of the relevant constituency solely to reasonable citizens is not adequately legitimated, then the overlapping consensus stage of justification is always endangered by the fact that it is unrealistic to expect that unreasonable people will reach an overlapping consensus between political and personal comprehensive conceptions. Second, if the overlapping consensus is achieved and therefore the full justification is accomplished, then it seems that the contribution of the stage of public justification to the overall justificatory project is extremely reduced. As a matter of fact, if each reasonable citizen is able to establish an overlapping consensus between the political conception of justice and her comprehensive conception, then it looks as if all the relevant aspects of a theory of justice are basically settled.25 Third, some authors (Dworkin, 1995, 1996, 2000; Galston, 1980; Raz, 1985, 1990) have insisted that the overlapping consensus imposes an untenable deliberative schizophrenia on reasonable citizens, since they are requested both to accept the priority of the right over the good, and yet to maintain their loyalty toward their comprehensive moral doctrines. Rawls, conversely, maintains that a theory of justice that is justified through the appeal to freestanding arguments and that is defined as reasonable rather than true can be supported by citizens without asking them to make an ultimate decision about where their final loyalty should rest: either with the political module or with their comprehensive point of view as moral agents. In the next chapters I will defend a different version of political liberalism, that I believe is consistent with the fundamental ideals of Rawls’s paradigm but also lays out a path ‘beyond Rawls’. In defending my paradigm, I shall defend a major justificatory role for the nonideal phase of the theory, therefore limiting the scope and normative relevance of the freestanding justification. Specifically, I will discuss the

 This critique is similar to concerns raised by Habermas and Sen. As we have seen, Habermas criticizes Rawls’s theory for not leaving enough room for the actual practice of political deliberation, since all the relevant issues are settled in the ideal phase of the theory and real citizens are left to follow principles of justice without much space to have a say. Sen (2009),, on similar lines, argues that Rawls depicts a theory that is intrinsically transcendental, as every relevant political issue is laid out in an idealized structure, where the conflicts with unreasonable citizens can be bracketed thanks to strong idealizations. 25

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nonideal circumstances of justice at length and assess how these circumstances affect the chances that an overlapping consensus may actually be reached by a majority of citizens of real-world democracies. For now, let me introduce an alternative scheme of the justificatory stages proposed by Rawls, since this scheme is the starting point for depicting my proposal for a justificatory strategy of political liberalism that avoids dilemmatic outcomes. This scheme is developed to stress that political and non-political values are actually incommensurable. Even when citizens engage in a complex evaluation of the compatibility of the political module with their comprehensive systems of beliefs and values, still analytically these two domains are fundamentally distinct. The political domain has goals, employs reasons, establishes deliberative processes, assesses human action according to criteria that are dramatically different from non-political values and standards. This means that each citizen is supposed to achieve an overlapping consensus over the value of a political module employing reasons that relies on her personal perspective, therefore opening up to the possibility that some citizens might employ reasons that work for themselves only. At the first stage, the pro tanto justification guarantees both the autonomy of the political domain and a latent normative justification for the political conception. The possibility that actual citizens might find this justification motivationally adequate and normatively action-guiding relies on establishing an overlapping consensus through private deliberations that employ comprehensive reasons and take into consideration the motivational sets of real citizens. Betting on the likelihood that a majority of citizens will reach an overlapping consensus means that even when citizens strongly believe that their comprehensive beliefs are true, still they ascribe normative relevance to political principles that constrain their deliberation over political matters with fellow citizens. In this regard, even when they establish a congruence between political principles and their comprehensive sets of beliefs, they are not compelled to give normative and/or epistemic priority to political principles over their comprehensive ones. Rather, given the incommensurability between these two domains, they can maintain loyalty toward their comprehensive view, and still accept that the political conception constrains their reasoning and actions over a specific domain, that is, the political and social activities they conduct in democratic societies. The incommensurability of the two domains is indeed expressed in Rawls’s account by his remark that a full justification of political liberalism should take into consideration different agential standpoints. Finally, the third stage focuses again on strictly political reasons, thanks to the deliberative goal of regulating processes of decision-making and conflict management adhering to the principle of public justification. Public reason is supposed to become the lingua franca of the political domain, allowing citizens in deep disagreement with one another to deliberate together over political matters, thanks to the acceptance of normative constraints previously legitimates in the stage of overlapping consensus. This alternative reading of the justificatory role played by the three stages is well illustrated by a second scheme (see Fig. 2.2). In contrast with Fig. 2.1, this scheme clearly distinguishes the three justificatory stages that Rawls specifies in the exchange with Habermas in 1995. I maintain that the proposal of political liberalism can be understood in its complete force only

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Fig. 2.2  The alternative reading of the structure of justification

when its development in different justificatory stages is highlighted. Each stage deals with a specific agential standpoint and is characterized by a definite justificatory goal. Furthermore, this scheme underscores that for the development of a theory of justice, the scope, goals and the constituency to which the justification is directed are different under ideal or nonideal circumstances. In Chap. 4, I will develop my proposal for a justificatory paradigm that clearly distinguishes between these two phases of the theory. The goal in this chapter is instead to provide an alternative interpretation of the Rawlsian paradigm that is loyal to Rawls’s fundamental regulative ideals and yet already reinterprets the paradigm through the lenses of the justificatory dilemma I previously introduced. Figure 2.2 represents the structure of justification of political liberalism as I see it. The pyramid is deliberately depicted as upside-down, since the more we proceed into the nonideal world, the more the stability of the whole process is endangered. Also, an upside-down pyramid in my opinion powerfully emphasizes the intrinsic instability of the justificatory enterprise and its work in progress dimension. The freestanding justification represents the tip of the pyramid, as the pro tanto stage laid out a strictly political conception, neutral and thin, as it abstracts from many aspects of reality and tries to be as robust as possible vis-à-vis reasonable comprehensive doctrine endorsed by agents. The freestanding argument is philosophically valid and normatively relevant, yet it needs to be embedded in a wider structure of justification in order to be able to grant stability for the right reasons. Indeed, the tip on an upside-pyramid is the weakest section, given how thin it is, in its total independence from other aspects of human life. We need therefore to provide a more sustained argument, by looking at the next two justificatory stages. When we are dealing with the nonideal phase of the theory, the agreement reached though valuable idealizations and abstractions comes again under scrutiny. The nonideal phase of the theory is composed by the full justification and public justification stages. After we have granted the validity of a specific concept of justice, we have to look

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at the actual possibility that this concept of justice might be regarded by citizens as compatible with their comprehensive views. The second stage, then, inquires whether it is reasonable to expect that a majority of the (nonidealized) constituency can achieve, everyone in their own personal way, an overlapping consensus in which the political module is viewed as congruent with their non-political ideals and values. In the nonideal phase, consequently, political liberalism should demonstrate to be able, thanks to its theoretical tools and its justificatory structure, to deal with an unconstrained reality and to establish political principles that are supported by at least a majority of citizens in a stable manner. The never-ending search for stability is expressed by the intrinsic difficulties of an upside-down pyramid to keep the balance and avoid collapse. In this regard, the upside-down pyramid is the metaphorical expression of a justificatory strategy that cannot appeal to foundational principles grounded in a comprehensive moral doctrine. Instead, political liberalism’s enterprise begins with a thin freestanding justification and then attempts to widen the justificatory constituency of reference, directly engaging with real-life citizens, therefore facing their preferences, interests, unrestrained beliefs and comprehensive values. The fundamental regulative ideal that should guide political liberalism when dealing with the nonideal phase of political deliberation is inclusivity and flexibility in facing diversity. The justification of political liberalism, I shall argue in Chap. 4, starts with strong idealizations thanks to which every member of the constituency is described as reasonable and able to achieve an overlapping consensus on some shared liberal principles. However, in the passage to the nonideal phase, it is not sufficient for the theory to relate to those members of the actual political constituency that ‘fit’ the paradigm of reasonableness. Rather, in real-world democracies liberal institutions and citizens are engaged in political deliberations and confrontations with many citizens that happen to be unreasonable and/or illiberal. First, political liberalism as a general approach to political theory must provide a nonideal-circumstances-­ responsive-approach about how to deal with real-world citizens, reasonable and unreasonable they may be. Second, I shall argue that the aspirational side of liberalism provides us with reasons to accept as a positive feature the work in progress dimension of political legitimacy. Actually, the work in progress characterization of political liberalism allows for a certain optimism, involving a reasonable hope that the constituency of reasonable people will soon be inhabited by more citizens than today. In this regard, an upside-down pyramid that attempts to find a stable equilibrium reflects the powerful idea of a realistic utopia, a notion that, when applied to the scope of political liberalism under nonideal circumstances, “extends what are ordinarily thought of as the limits of practical political possibility” (Rawls, 1999: 6).

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2.1.5 Epistemic Abstinence In the first part of this chapter, I discussed the political turn thematized by Rawls in PL. As I said, my goal was not exegetic. Rather, in an attempt to outline a personal proposal for a liberal theory of democratic legitimacy that proves loyal to Rawls’s main intuitions, while proceeding beyond his approach, I needed first to illustrate his theory. I did so along the thematical lines of the justificatory dilemma that characterizes every attempt by liberalism to establish an adequate political conception while respecting the agential autonomy of citizens. In moving beyond the Rawlsian paradigm there are two fundamental aspects that drive my reasoning. First, I share Rawls’s proposal for establishing a political liberalism that proves freestanding vis-­ à-­vis comprehensive moral doctrines, metaphysical claims and ontological disputes. Conversely, I maintain that political liberalism ought to take a stance regarding the epistemic theory of justification that supports its complex justificatory paradigm. I argue that the epistemic abstinence that Rawls defends, and many authors have criticized (Gaus, 1996; Habermas, 1995; Raz, 1990; Wenar, 1995), is indeed a liability for the overall political liberalism project. Therefore, in the second part of this chapter my goal is to specify the epistemological background of Rawls’s theory. Then, in Chap. 3 I will discuss at length the nonideal epistemic circumstances of justice that constrain our collective reasoning over political matters. In order to clarify why the charge of epistemic abstinence is so problematic, let me introduce Raz’s criticism of Rawls’s proposal for a strictly political liberalism. In his article “Facing Diversity: The Case of Epistemic Abstinence” (1990), Raz argues that any justificatory procedure that eschews reference to the concept of truth is hopelessly weak, as it lacks the necessary epistemic strength for guaranteeing a sound justification for the principles that it aims to justify. According to Raz, it is very unlikely that a justificatory strategy, avoiding any normative reference to ultimate truths or deep values, can provide philosophical arguments that prove to be able to stably motivate citizens, therefore granting stability for the right reasons, rather than simply establishing a modus vivendi. Raz believes that the desirability of a theory of justice (and the adequacy of the justificatory strategy) partly derives from the attempt to publicly establish moral truths.26 In order to better understand the value of the critique raised by Raz, I will briefly outline the main arguments introduced in his article. First of all, Raz articulates the fundamental assumptions around which Rawls develops his proposal of a strictly political liberalism: limited applicability; shallow foundation; autonomy; epistemic abstinence. According to Raz, the limited applicability is determined by the Rawlsian focus on the context. Indeed, starting from “Kantian Constructivism in Moral Theory” (1980), Rawls ties up his justificatory procedure to the contextual circumstances of justice. With the political turn, Rawls establishes different, probably more limited, goals for his justificatory paradigm, the fundamental one being the attempt to  “Their achievement – [...] – makes the theory true, sound, valid, and so forth. This at least is what such a theory is committed to. There can be no justice without truth,” Raz (1990: 15). 26

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promote a conception of justice that in some sense already reflects some model conceptions (that is, the idea of citizens as free and equal and the notion of a well-­ ordered society as a fair system of cooperation) that are drawn from the historical context of liberal-western societies. Given this contextual move, the argument of the original position is still relevant, but in a different way: such an argument becomes a “device of representation” (PL: 24) for modelling specific liberal organizing ideas that can be contextually extrapolated from the historical process that has led to the formation of contemporary democratic societies and the liberal public culture that is part of them. The limited applicability is then connected by Raz with the second feature of political liberalism, namely a shallow foundation, since, as Raz summarizes (1990: 6): “the only definitive foundation is the rootedness in the here and now.” Raz, as many other critics, believes that the political turn, requiring that the justification is dependent on a normatively connotated, but contingent, context from which some basic organizing ideas are drawn,27 introduces a relativistic dimension within the justificatory paradigm. According to Raz, Rawls’s strategy for solving the tension between the need for a normative justification of the political conception and the attempt to respect the fact of pluralism hinges on the possibility of keeping together the shallow foundation with the autonomy of the political domain.28 Indeed, Rawls clearly claims that the justificatory arguments publicly provided in favor of the conception of justice should be freestanding (and therefore robust with regard to the various conceptions of the good), in order to be respectful of the comprehensive perspectives of reasonable citizens involved in political deliberation. However, to grant normative force to the justificatory procedure notwithstanding the impossibility of appealing to comprehensive arguments, Rawls envisages a political paradigm whose fundamental elements are part of a common public culture. The possibility that actual reasonable citizens might converge in acknowledging the relevance of a common public background-culture is the contextual wager made by Rawls: if citizens can publicly agree on the normative value of some fundamental organizing liberal ideas, then the political practice of justification can guarantee motivational force while, at the same time, respect the fact of pluralism and citizens’ freedom and autonomy. Finally, Raz discusses the epistemic abstinence strategy introduced by Rawls in his article “Justice as Fairness: Political not Metaphysical” (1985). Raz claims that Rawls’s decision to keep completely separated the issue of establishing moral truths and the attempt to grant legitimacy to a specific political conception involves an

 “…the fundamental organizing idea of justice as fairness, within which the other basic ideas are systematically connected, is that of society as a fair system of cooperation over time, from one generation to the next. We start the exposition with this idea, which we take to be implicit in the public culture of a democratic society,” Rawls (PL: 15). 28  Raz (1990: 9) states: “The common culture matters to Rawls as a fact, regardless of truth. That is the meaning of the shallow foundations. They, and the autonomy of the doctrine of justice, allow the generation of a theory of justice which can form the basis of a consensus in the face of pluralism.” 27

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unsustainable epistemic weakness. According to Raz, the epistemic abstinence is directly proportional to the degree of autonomy of the theory itself. The more the theory of justice is freestanding with regard to moral convictions, the more the theory lacks the necessary epistemic force for granting normative efficacy to its principles of justice. In sheer opposition to some of the basic insights that support the political turn defended by Rawls, Raz defends a view according to which it is theoretically impossible to fully justify a political conception, without referring to some grounding comprehensive moral values. For Raz, moral values are normatively binding, as long as they are justified as true values. Raz believes that for preserving normative force, a satisfactory theory of political legitimacy cannot do away with a metaphysical foundation. According to Raz, the desirability of a political conception stems from the fact that such conception is partly defined by referring to a true moral theory.29 In this regard, Raz is convinced that Rawls’s approach lacks any adequate epistemological criterion for distinguishing a satisfactory normative theory from a not adequate one and that the only criterion his political liberalism is left with for evaluating the legitimacy of his conception of justice is a form of strong conventionalism, according to which the justifiability of the principles of justice depends entirely upon the fact that they are contingently chosen by the actual members of the constituency of reference.30 For Raz, the epistemic weakness of the Rawlsian project is proved by the fact that the desirability of political liberalism derives from the popularity that such a conception can gain within a contextually defined political constituency (Raz, 1990: 19), rather than being granted thanks to an undeniable strong normative justificatory argument. To conclude, Raz does not believe that Rawls’s proposal can succeed in granting both normative desirability and political efficacy, as his paradigm abstains from engaging in fundamental epistemological and metaphysical analyses. Raz, conversely, defends an approach according to which it is not possible to justify a political conception of justice, without providing adequate support for such a conception thanks to an analysis that comprises an epistemological theory of justification and an investigation of what criteria are useful for establishing moral truths. Connecting Raz’s criticisms with my analysis of Rawls’s proposal, I want to clarify what my reaction is to these critiques. First, regarding the alleged limited applicability of political liberalism, I agree with Raz, and with Rawls himself (even if he is not so explicit), that a justificatory strategy that partly depends upon a contextual reference justifies the political conception to a limited constituency, that is,  Jonathan Quong (2011: 221–255) systematizes and clarifies the justificatory strategy defended by Rawls in PL and rebuts Raz’s critiques claiming that his arguments would be well directed and hard to overlook in case reasonable pluralism and the recognition of the burdens of judgment would not be stringent features of our contemporary societies as instead they are. In the next chapter, looking at the actual circumstances of justice, I will defend a conception of moral epistemology that I characterize as modest, since it accepts the intrinsic fallibility of our epistemic capacities and promotes what Raz would call a shallow foundation of political theory. I believe that this modest epistemic paradigm perfectly fits with Quong’s defense of Rawls from Raz’s criticisms. 30  “His epistemic abstinence means that his doctrine of justice should be accepted even if false,” Raz (1990: 17). 29

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to the members of the polity that indeed acknowledge the normative connotation of the reference to ideals and evaluative standards inferred from a specific political context. Indeed, the reference to specifically historically developed contexts might help the theory get closer to stability for the right reasons, but it is also important to assess the impact of contextualism on the overall epistemic force of the justificatory strategy. I will address this issue at the beginning of Chap. 4, where I will outline Quong’s illustration of two different views of liberalism, the internal and external conception. Second, according to Raz, political liberalism fails due to a too shallow foundation of its fundamental notions and principles, therefore lacking normative force. Here I disagree with Raz on the conclusion, but I agree with him that Rawls’s account does not offer an adequate rebuttal of these concerns. I believe that the way out from this depiction of political liberalism as irremediably weak from the epistemological perspective is to show the relevance of a coherentist paradigm of justification. This will be the object of my analysis in Sect. 2.2 of this Chapter. Once I show that a coherentist paradigm of justification implicitly supports Rawls’s strategy in PL, I am able to demonstrate that the so-called independence of the political domain is not really problematic when we divide the justificatory enterprise into an ideal and nonideal phase. In fact, the constraint of establishing a freestanding justification is exhausted in the ideal phase, whereas the nonideal phase is focused in avoiding indeterminacy (due to the difficulties of reaching stable political agreements in the face of entrenched disagreement) and in granting adequate congruence between the political ideals and the expectations and values supported by real members of the constituency. Finally, regarding the charge of epistemic abstinence, I agree with Raz that it is not possible to provide a full justification of a political conception without engaging in an epistemic analysis of what it means, technically, to justify a belief, a proposition, a principle. And yet, I disagree with both Raz and Habermas regarding the scope of the epistemic analysis. I believe that such an analysis should focus on specific methodological and epistemic concerns, (that is, what is the most adequate structure of justification for political judgments? Is it important to distinguish between agent-related and impersonal reasons? Is fallibilism an adequate account of human abilities in assessing evidence and establishing knowledge?) rather than dwelling on ontological disputes or attempting to justify a political theory in the terms of a true theory, instead of a reasonable one.

2.2 Rescuing Epistemology: A Coherentist Theory of Public Justification I concluded the previous section clarifying a methodological distance between my proposal and the Rawlsian one, that is, I have argued that it is not plausible to argue that a full justification of a specific conception of justice can be reached if, meanwhile, the theory abstains from explaining the epistemic method that is employed in the justificatory processes itself. In this regard, I firmly distinguish between

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metaphysical and epistemic abstinence. On the one hand, I believe that Rawls is right in abstaining from metaphysical disputes, on the ground that it is possible to be neutral with regard to the disagreement over the ontological status of moral facts while deliberating over political matters. On the other hand, in this work I claim that the same methodological abstinence is detrimental if requires to eschew epistemological disputes. It appears then that one of the main goals of this book is to define an epistemic paradigm that can be fruitfully used to support a Rawlsian-like account of liberal legitimacy and political justification. In the next chapter I will lay out the actual epistemic circumstances of justice and I will defend a general modest epistemic paradigm that I believe fits quite well the political context of real-world democracies. In this section, preliminarily, I shall reason upon coherentism, a specific theory of epistemic justification that, according to my interpretation, constitutes the implicit epistemic background in support of the overall justificatory framework defended by Rawls in PL.

2.2.1 A Virtuous Circularity Coherentism is a theory of justification according to which there are no foundational beliefs, because all justified beliefs are inferentially justified (Bonjour, 1976, 1985; Brink, 1989; Davidson, 1986; Quine, 1951, 1969; Sellars, 1956, 1973, 1979; Sosa, 1980, 1991). The agent S is justified in holding the belief that p, if and only if, p is part of a coherent system of beliefs and therefore p can be inferentially justified through the justificatory relations that connect beliefs that are part of the same coherent system. The fundamental methodological principle sustained by coherentism claims that justification should always take into consideration the whole coherent system, as no assessment or justification is available when the propositional status of a single belief is evaluated independently from the entire doxastic system of beliefs.31 In clear opposition to coherentism, we find foundationalist theories of epistemic justification. According to foundationalism, all justified beliefs are either basic or derived from some basic beliefs. Following foundationalism, an agent S is justified in believing that p if and only if p is either a basic belief, or it is inferentially derived from a basic belief non-inferentially justified. A foundational theory of justification claims that only those beliefs that are foundational or that are inferentially derived from foundational beliefs are justified. A moral or political conception justified

 This methodological epistemic principle can be defined as holistic. Quine (1951) famously defended such a notion, claiming that a scientific theory cannot be tested in isolation, because it is part of a web of theories that mutually support one other. Another slightly different perspective about holism is the one provided by Jonathan Dancy. Dancy (2004: 7) claims that holism, as a theory of reasons, implies that “a feature that is a reason in one case may be no reason at all, or an opposite reason, in another.” 31

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through a foundational procedure relies on some beliefs – at least one – that are non-­ inferentially justified and are therefore warranted and cannot be disputed.32 Foundationalism is very often regarded as a more appealing proposal than coherentism as a general theory of moral justification – notwithstanding the epistemic difficulties in envisaging how to reach a non-inferential justification for at least one of our moral beliefs. My intuition here is that this preference derives from the fact that foundationalism appears to entail a more ‘grounded’ justification of morality than coherentism. Since it is grounded in at least one self-justifying moral truth, foundationalism establishes warranted judgments in moral reasoning. The truth-­ conduciveness ascribed to foundationalism by its defenders seems to be a feature of justification that we are not willing to give up lightly especially when moral values are at stake. In this regard, a foundational epistemic approach would prevent political theory from being supported by a shallow foundation, to use Raz’s words. However, the demandingness of foundationalism becomes extremely problematic when we evaluate the possibility of establishing foundational justificatory processes under nonideal epistemic circumstances. Even assuming that self-justifying moral truths exist, the pervasive disagreement that characterizes contemporary political societies makes it hard to believe that we can build collective agreement over foundational beliefs while respecting the agential autonomy of citizens. For this and other reasons that I will illustrate in the next chapter, I believe that in the political domain we need to support a more modest epistemic paradigm that relies on a coherentist account of epistemic justification. There are two important arguments that have been introduced for criticizing the validity of coherentism as an adequate theory of epistemic justification (Brink, 1989; De Paul, 1993; Timmons, 1987): (i) a regress argument; (ii) a skeptical argument. The regress argument objects to coherentism that its procedure of justification leads to an infinite regress because, if every belief is justified inferentially, then the inferential chain would be endless. According to the regress argument, a coherent procedure of justification can be explained through this scheme:

 The challenging point about foundational theories of justification concerns the nature of the noninferential justification of foundational beliefs. What kind of justification is this one? Some theorists have argued in favor of the existence of some self-evident moral truths that can be grasped by our intellectual faculties without being inferred. Intuitionism provides the best example of this perspective (Clarke, 1706; Huemer, 2005; Moore, 1903; Price, 1758; Ross, 1930; Shafer-Landau, 2005; Sidgwick, 1874). However, although foundationalism is often connected with intuitionism, the two theories are different. We can hold a foundational theory of justification in moral epistemology without necessarily sustaining intuitionism. A confirmation of this conclusion is given by the theoretical possibility of defending a foundationalist theory of moral justification in which all moral beliefs are derived inferentially from foundational beliefs that are not moral. This kind of theory would be part of a naturalist framework according to which normative statements can be derived and justified in the light of non-normative facts. By contrast, intuitionism is a theory that tends to pair a foundational theory of justification with an anti-naturalist account of moral facts. 32

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(i) belief p is justified given that q; (ii) q is a justificatory premise that needs to be itself justified; (iii) q is justified given that r; (iv) r is justified given that s; (v) and so on, ad infinitum. A foundationalist theory of epistemic justification, by contrast, never risks producing an infinite regress, since every inferential chain is stopped by a self-justifying belief. In order to defend coherentism from the regress to infinite observation, we can distinguish among different structures of justification (Brink, 1989: 115–122): (a) every justification is both linear and inferential; (b) every justification is inferential, but not all of them are also linear; (c) every justification is linear, but not all of them are inferential. According to the regress argument, only the option (c) would be able to avoid any possible infinite regress. The option (c) represents the justificatory structure that is employed by a foundationalist theory of justification. With regard to coherentism, by contrast, it is reasonable to wonder whether a coherentist perspective is represented by the scheme (a) or (b). The scheme (a) is clearly unable to avoid an infinite regress. As a matter of fact, if every inferential deduction is also linear, then the inferential chain is never-ending.33 Is (a) the correct scheme for describing a coherentist procedure of justification? If we defend a sophisticated theory of coherentism, as I shall argue, a form of coherentism that therefore respect some quite onerous epistemic constraints, then we can affirm that coherentism is represented by option (b), rather than by option (a). A coherentist theory of justification might avoid the risk of infinite regress thanks to the fact that the justificatory connections among different beliefs are not like a linear chain; rather they are well represented by the image of a holistic web. Within a coherent system, beliefs epistemically support each other always through inferential arguments. However, the mutual support scheme is not necessarily linear, because it is possible to have a web of beliefs in which the epistemic connections are circular, rather than linear. Within this coherent holistic web, we can encounter a belief q that is justified through the reference to some beliefs (s; r; p) that are justified thanks to some other beliefs (z; t; y) whose justification is at the end in some way justified also by the reference to belief q. However, in order to avoid a vicious circularity, coherentism requires that the procedure of justification must respect an epistemic independence constraint (Daniels, 1996; De Paul, 1993) according to which if a sub-set of beliefs (Q) is maintained thanks to the justificatory support received through the consistency and epistemic correlations with sections of the systems of beliefs (S) and (Z), then some interesting, non-trivial portions of the set of justificatory beliefs in favor of (Z) must be disjointed from the set of justificatory reasons in support of (S). All beliefs within the coherent system mutually support one other, but some justificatory chains should  According to Brink, the argumentative scheme outlined by (a) will lead to skepticism, given that humans, being finite epistemic agents, cannot hold an infinite number of beliefs. 33

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be disjoint from others, so that the independent constraint is respected. When a coherent system of beliefs satisfies the epistemic independence constraint, then the justificatory force of the overall system is not reduced by the fact that some beliefs of the systems mutually support each other – therefore avoiding the risk of infinite regress. The requirement that non-trivial portions of the justificatory chain are disjointed is very important: it guarantees that the intrinsic circularity of coherentism, as we shall see, can be defined as a virtuous circularity rather than a vicious one.

2.2.2 How to Reply to the No-Contact-With-Reality-Objection It is essential to clarify that a coherentist justification does not simply require to establish logical consistency among the beliefs that are part of the same system of beliefs. Logical consistency is a necessary condition, but not a sufficient one as well. As a matter of fact, we can have completely consistent systems that are still false. Consistency alone is not a sufficient condition for discriminating between the correctness and the incorrectness of alternative, but equally coherent, systems of beliefs. For example, both astronomy and astrology are coherent systems of beliefs. How can we then discriminate between the epistemic relevance of astronomy and astrology starting from the acknowledgment that both these systems of beliefs are internally consistent? Coherentism as a general justificatory strategy does not simply establish that the mutual support among beliefs achieves coherence. Instead, coherentism is epistemically relevant because it looks for explanatory connections as well. In this regard, David Brink claims (1989: 103) that “the degree of a belief system’s coherence is a function of the comprehensiveness of the system and of the logical, probabilistic, and explanatory relations obtaining among members of the belief system. In particular, explanatory relations are an especially important aspect of coherence.” In other words, coherentism is a justificatory strategy that, involving epistemic relations among beliefs in different areas of the holistic system, is able to provide reasons in favor of the fact that: (i) even though astrology can be supported by a consistent system of beliefs, there are no evidential connections between these beliefs and the external world; (ii) there are good reasons for choosing astronomy over astrology as a general and adequate theory that accounts for astronomical phenomena because astronomy, as a sub-set of beliefs, is coherent with many other beliefs and back-ground theories concerning the physics of celestial bodies; the reliability of human observations; the scientific method; etc. The example of astrology allows me to introduce a further important criticism aimed at coherentism, that is, the no-contact-with-reality objection.34 According to this argument, even if a coherent system of beliefs might appear as justified, given the internal explanatory connections of mutual support among the beliefs of the system, still there is no epistemic warranty that the coherent system is connected in  “This point is sometimes put metaphorically by claiming that coherentism provides no guarantee of ‘contact with reality,’ no assurance that a coherent system of beliefs will not be free-floating with no moorings attaching it to the world,” Brink (1989: 106). 34

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any relevant way with the external world.35 This conclusion is indeed correct, for coherentism, in contrast with foundationalism, accepts the fallibilistic dimension of our epistemic processes, therefore assuming that valid justificatory processes do not necessarily establish beliefs as warranted and infallible. This line of reasoning led us to the debate over the risk of falling into skepticism. First, of all, it is important to stress that the skeptical argument is a challenge for both foundationalism and coherentism. However, I suppose that the skeptical challenge is one of the reasons why common-sense attitudes are inclined to consider foundationalism as a more adequate epistemic approach within the domain of moral reasoning. According to this common-sense argument, foundationalist theories of justification, assuming the existence of at least one non-inferential, basic moral belief, are more adequate for coping with skeptical arguments. In this regard, it is worth debating a specific version of the skeptical argument that criticizes coherentism for its alleged inability to guarantee an evidential connection between beliefs and the external world (no-­ contact-­with-reality objection): (i) If we are to answer skeptical doubts, justified beliefs must rule out skeptical scenarios. (ii) Hence, justified beliefs must be true. (iii) Purely inferential accounts of justification cannot ensure contact with reality. (iv) Hence, purely inferential accounts of justification cannot ensure that justified beliefs are true. (v) Coherentism is a purely inferential account of justification. (vi) Therefore, coherentism cannot answer skeptical doubts. According to this argument, coherentism in not an adequate theory of epistemic justification, because the inferential justificatory structure is not able to rule out skeptical scenarios. If we take seriously the actual epistemic circumstances of justification (I shall illustrate them in the next chapter), then the assumption (ii), namely the fact that justification must be guaranteed as true, appears overly demanding, as it presupposes unreasonably high standards for human knowledge. Brink refers to this assumption as objectivism about justification; an assumption according to which “justification for believing p is justification for believing p to be true” (Brink, 1989: 106). Objectivism about justification maintains that it cannot be the case that a justified belief is not at the same time also a true, warranted belief.36 As we shall see, even though it is correct to assume that justification constitutes a reliable evidential path toward truth, still there are good epistemic arguments for rejecting a more demanding

 For a deep analysis of this issue, although focused just on reflective equilibrium as a specific coherentist method, see DePaul (1993: 13–56). 36  Brink (1989: 106) claims: “Now realism and objectivism about justification provide an antiskeptical argument for foundationalism. For only an account of justification that includes non-inferential justification can possibly guarantee that our justified beliefs accurately describe a world whose existence and nature are independent of our beliefs about it.” 35

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conclusion, namely the fact that justification must guarantee truth. Knowledge implies truth, but justification does not. In this regard, coherentism is an epistemic theory that, assuming a realistic stance toward our epistemic abilities as finite agents, takes the skeptical challenge seriously. Indeed, once it is established that even idealized justification might not correspond with truth, then it appears that arguments of irreducible skepticism can always be raised. There are famous examples of radical skepticism that question the veracity of any of our beliefs. For example, it can always be the case that our perceptions have been misled by a Cartesian evil demon37 or that the mental states and sensible perceptions that we presuppose to be ours are in fact produced by brains in vats connected to supercomputers (Putnam, 1981). Even though highly improbable, it is impossible, given our limited epistemic abilities, to get rid of every skeptical scenarios as ultimately false scenarios. However, it is essential to highlight that skeptical possibilities bear on our knowledge claims and not on justification claims. “Skeptical possibilities make the truth of our knowledge claims (or at least those subject to skeptical doubt) contingent. If we are brains in vats or the playthings of Cartesian demons induced to have beliefs with which realist secondorder beliefs cohere, then we cannot have knowledge, because knowledge implies true belief. But we can nonetheless have justified beliefs.” (Brink, 1989: 129) Taking epistemological skepticism seriously does not imply that we have to reject any attempt to build up a satisfactory theory of justification. This is exactly what coherentism tries to do. It takes the skeptical challenge seriously and yet defends the possibility that human beings can establish genuine knowledge, once it has been clarified that human’s justificatory strategies should include a fallibilistic clause.38 Coherentism, therefore, rebuts the skeptical argument through an indirect strategy. The indirect strategy rejects the assumption (i) (“If we are to answer skeptical doubts, justified beliefs must rule out skeptical scenarios”) in order, then, to reject objectivism about justification (ii). Coherentism is an adequate theory of epistemic justification not because it rules out any skeptical scenarios and meets the requirement of objectivism about justification. Rather, coherentism is a theory of justification that, being consistent with the actual epistemic circumstances of justification, sustains the validity of the justificatory procedures, without assuming their irresistibility. This conclusion is extremely relevant, as it shows that the fundamental issue at stake, when dealing with the actual epistemic circumstances of justification, is the determination of which structures of justification we estimate to be the most adequate given our epistemic abilities, rather than the attempt to rule out any

 Descartes in the Meditations on First Philosophy (1992 [1642]: 29) states: “I shall, then, suppose that not the optimal God – the font of truth –, but rather some malign genius – and the same one most highly powerful and most highly cunning –, has put all his industriousness therein that he might deceive me: I shall think that the heavens, the air, the earth, colours, figures, sounds and all external things are nothing other than the playful deceptions of dreams by means of which he has set traps for my credulity.” 38  Keith Lehrer on this matter states (in Dancy, Sosa and Setup (eds.) 2010: 281): “A defender of coherentism must accept the logical gap between justified belief and truth, but she may believe that her capacities suffice to close the gap to yield knowledge. That view is, at any rate, a coherent one.” 37

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skeptical scenarios as logically impossible. Since our access to the world is always mediated, coherentism requires the rejection of the assumption that foundationalism necessarily should hold true, namely, that justified beliefs must correspond with true, warranted beliefs.39 This indirect strategy to address the skeptical challenge might appear as an unsatisfactory solution to some, since it does not rule out every skeptical scenario. However, I shall argue that coherentism is indeed a more adequate account of our epistemic abilities, once we spend some time reflecting on the actual epistemic circumstances of justification. Conversely, foundationalism, that at first sight looks like a far more appealing paradigm, fails to account for the demandingness of its structure in the face of unrestrained epistemic circumstances. Furthermore, there is a second aspect of coherentism that is relevant in addressing the no-contact-with-­ reality-objection, that is, the epistemic role played by second-order beliefs (Blanchard, 1939; Bonjour, 1985; Brink, 1989; Lehrer, 1974).40 Specifically, we can distinguish between: (i) first-order beliefs about features of the world external to us; (ii) second-order beliefs that regard the relationship between the first order beliefs and the world. As we have seen before in developing the argument against the possibility of having pure non-inferential justified beliefs, second-order beliefs play a fundamental role within the procedure of justification. Second-order beliefs provide explanatory reasons in favor of the acceptance of first-order beliefs. In fact, second-order beliefs, connecting among them beliefs at different levels of generality, offer sound reasons for considering our first-order beliefs as reliable. For example, some second-order beliefs regarding scientific theories of the universe are good reasons for supporting astronomy, instead of astrology, as a reliable system of beliefs regarding the study of celestial objects. Second-order beliefs include beliefs about different issues: as, for example, beliefs about ourselves as moral agents, beliefs about scientific  “Not only does a coherentist treat each belief as open to revision in light of others, she recognizes also that even a fully coherent and so wonderfully justified, set of beliefs might turn out to be false. Justification’s link to truth, such as it is, is not provided by coherence itself, but instead by the evidential relations that bind beliefs together into coherent sets. Thus the theory makes good sense of how we can look back on our own earlier beliefs as having been justified and yet now justifiably thought wrong,” Sayre-McCord (1996: 178). 40  “We not only hold beliefs about tables and chairs, the sun and the stars; we also hold beliefs about the technique of acquiring beliefs.” Blanshard (1939: 285, emphasis in original). See also Williams (1980: 248): “By ‘epistemic beliefs’ I mean beliefs about beliefs. Our epistemic beliefs include beliefs about techniques for acquiring and rejecting beliefs, beliefs about the conditions under which beliefs of certain kind are likely to be true, and so on. The importance of epistemic beliefs can be brought out if you look at beliefs based on observation. Philosophers who claim that knowledge needs foundation think that these foundations must include beliefs based on observation and this means that some observation beliefs must be intrinsically credible. A much more credible view is that our attitude toward beliefs based on observation reflects some very general epistemic beliefs about the reliability of human observation, the conditions under which perceptual error is likely and other beliefs of this kind.” 39

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theories, beliefs about our belief-formation mechanisms, and so on. Of course, second-­order beliefs are justified inferentially as well. Again, in order to establish virtuous circularity, the justificatory chains that inferentially justify second-order beliefs in favor of the belief that p must be partly disjointed from the first-order beliefs in support of the belief that p.

2.2.3 Coherentism and the Intrinsic Flexibility of Collective Justificatory Processes Is a scenario in which our beliefs are justified, even if skeptical challenges are never ruled out once for all, an acceptable prospect from the epistemic perspective? By now it should be clear that taking epistemological skepticism seriously does not imply that we have to reject any attempt to build up a satisfactory theory of justification. This is exactly what coherentism tries to do. It takes the skeptical challenge seriously, and tries to develop a reliable justificatory strategy starting from this awareness. Conversely, theories of justification that affirm that objectivism about justification is true reject every genuine skeptical scenario as false. For this reason, I argue, coherentism is an epistemic theory that accepts the constraints imposed on justificatory theories by nonideal epistemic circumstances. Of course, the fact that coherentism takes epistemological skepticism seriously implies that the attained coherence is always under scrutiny and that the ‘maximal coherence’ goal is more a regulative ideal, than a realistic goal. Coherentism is a theory of justification that, being holistic, revolves around a work in progress paradigm, in which readjustments and modifications are always an option, in case new evidence imposes a revision of some beliefs internal to the coherent system. A coherent system of beliefs is made up by a web of beliefs in which beliefs are connected by explicatory relations and when we face an internal inconsistency it is possible to analyze first and second-order beliefs we hold for deciding which belief(s) should be modified or eliminated in order to reach a new coherent equilibrium. This work in progress procedure of readjustment and mutual balancing among different beliefs is a never-ending enterprise. I maintain that the fact that the epistemic enterprise of reaching coherence is never resolved once for all is a virtue of this paradigm, rather than a flaw. Indeed, I will argue in favor of a general work in progress perspective regarding political justification, as the intrinsic revisability of publicly justified principles is a fundamental aspect of the nonideal approach I want to defend. In fact, the flexibility provided by coherentism, through ceaseless readjustments and balancing acts, opens up the theoretical possibility of managing disagreement thanks to the establishment of a public justificatory strategy for political decisions. Coherentism, in fact, supports a procedure of justification that is intrinsically pluralistic and that allows for constant revisions. In refuting any special epistemic status to some allegedly basic, self-justified, beliefs, coherentism is compatible with the possibility that agents might converge on the validity of the

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political conception, without the need of revising or abandoning their private perspectives. I started this book highlighting the normative relevance of respecting the agential autonomy of agents involved in public processes of decision-making. Then, I stressed that disagreement can be described as one of the raison d’êtres of democracy. Now, with this section my goal is to connect this general framework to a technical analysis of coherentism as an adequate general account of our epistemic justificatory processes. Assuming the validity of coherentism is helpful for defending a narrative in which disagreement among agents can be defined as genuine, rather than as the unwanted outcome of a flawed procedure of reasoning. Conversely, if one holds a foundational account of justification, then disagreement can derive from nothing but the recognition of the fact that “at least one of the protagonists has to be guilty of a deficiency in the way he arrives at his view, or to be somehow constitutionally unfit” (Wright, 1995: 222). The intrinsic fallibility of our epistemic processes (remember the epistemic impossibility of ruling out skeptical scenarios) involves that the search for perfectly coherent systems of beliefs is a never-ending collective enterprise. Furthermore, and more importantly, a justificatory paradigm that describes knowledge as a web of beliefs that inferentially sustain one another is very helpful for accounting for two aspects of collective reasoning under nonideal circumstances: (i) Looking at these complex webs of beliefs in which explanatory chains connect beliefs at different levels, it makes sense to assume that agents can achieve an agreement over some specific aspects of their social lives, while still disagreeing over other fundamental beliefs and values. (ii) Coherentism, as I shall argue in the next chapter, provides us with epistemic reasons in favor of a general attitude of epistemic modesty.41 One caveat is in order here: under nonideal circumstances, it is always possible that after a prolonged intersubjective confrontation, citizens decide to stick with their personal perspectives, refuting any collective solutions. Naturally, generalized disagreement that is reconfirmed after an intersubjective confrontation becomes an even more entrenched disagreement, showing the inability of the agents involved to find a middle ground. The main challenge for this work is to pin down adequate epistemic, normative and political reasons for motivating citizens to engage in public deliberative processes that, without requiring the resolution of disagreement

 On this matter, David Brink (1989: 94–95) is extremely clear: “If Waldo holds a moral belief p, he must think that p is true and that contradictory moral beliefs are false. Belief p is a first-order belief. But Waldo can also hold a second-order belief (that is, a belief about his first-order beliefs) that some of his moral beliefs, possibly including p, are mistaken. Fallibilism is a possible and typically rational form of epistemological modesty or caution. There are various reasons for this kind of modesty. Our justification in holding beliefs typically does not guarantee the truth of those beliefs; there are degrees of justification in holding beliefs; and we can acquire new evidence that may either further support or undermine beliefs we previously held with justification.” 41

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once for all, achieves collective decisions that are deemed legitimate by a majority of the political constituency.

2.3 The Method of Reflective Equilibrium In this chapter I have been arguing that Rawls’s account of political liberalism lacks an adequate epistemic analysis in support of his normative framework of public justification. In trying to close this gap, I defended coherentism as an adequate theory of epistemic justification. Now, my goal is to show that coherentism properly fits the justificatory framework defended by Rawls. Again, to illustrate the relevance of the coherentist method within the Rawlsian paradigm, I shall go back to the justificatory role played by the overlapping consensus. Is it reasonable to suppose that citizens, confronting their private comprehensive views and the political conception, would likely find congruence between the two? In case the answer about this interrogative is positive, then we ought to reason upon the epistemic process through which this congruence can indeed be established. I assume that in order to answer to these theoretical worries we have to look more closely at a coherentist method of justification employed by Rawls already in TJ, namely, reflective equilibrium (henceforth RE). RE is a justificatory method that looks for the establishment of coherence between general principles and particular moral considered convictions held by the citizens to whom the general principles are addressed. The method of RE looks for a coherent balance between some general principles and some considered moral judgments held by agents. Rawls (1951: 183) defines the notion of considered judgment in connection with the concept of a competent judger: “I have defined, first, a class of competent judges and, second, a class of considered judgments. If competent judges are those people most likely to make correct decisions, then we should take care to abstract those judgments in which our moral capacities are most likely to be displayed without distortion”. These judgments, then, represent the basic moral considered convictions that moral agents hold in their system of beliefs. As we have seen, according to Rawls, a full justification of general principles can be reached only when it is proved that they are not incoherent with the considered convictions about justice held by reasonable citizens in their doxastic systems of beliefs. Therefore, RE can be described as the procedure that attempts at establishing whether principles of justice, already supported by a sound philosophical justificatory argument, might be embedded within the doxastic sets of beliefs held by citizens. In relation to the epistemic paradigm that I defend here, it is worth noting that RE, as a justificatory method, implies that in moral reasoning no choice between justifiable and unjustifiable principles is possible without taking into consideration the agents’ perspective as competent judges and without addressing agents’ ordinary judgments as the starting elements of the justificatory procedure. Rawls (TJ: 48) describes RE as a state “reached after a person has weighted various proposed conceptions and he has either revised his judgments to accord to one of them or held

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fast to his initial convictions.” RE is a deliberative procedure in which the moral considered convictions held by agents play a fundamental role within the process of justification. Hence, it results that RE is the justificatory tool that allows to bridge the two dimensions of liberal legitimacy that characterizes political liberalism, namely, the search for a philosophical-normative sound justificatory argument and the goal of achieving stability for the right reasons, taking into consideration the private perspectives of autonomous citizens. Establishing whether RE is an adequate method for playing this fundamental role within the political liberalism paradigm is the focus of the next pages.

2.3.1 Nelson Goodman and the Riddle of Induction As Rawls himself states in TJ (20), RE is actually an epistemic method that is not specific to the moral domain. On the contrary, the notion of RE that Rawls outlines in TJ is derived from an attempt to justify the rules of inductive logic advanced by Nelson Goodman in his classic Fact, Fiction, and Forecast (1955). In the third chapter of this work, “The New Riddle of Induction”, Goodman revises the Humean conundrum of how one can discriminate between epistemically probable predictions from improbable ones. According to Goodman, to justify rules of inference in inductive logic, it is necessary to refer to already established inductive inferences that have been historically regarded as valid. This procedure stresses the fact that no rule of induction is valid per se; rather, every new rule of induction must confront established usages of induction in order to evaluate whether its consistency with previously justified ones is a proof of its reliability. This first conclusion is perfectly congruent with a general coherentist paradigm, since coherence cannot be presupposed, but only acknowledged once achieved. In contrast with deductive reasoning, the only chance to justify the inductive method is through actual implementations of the very same method. This means that a coherent system shows its epistemic tenability just in the actual attempt to achieve coherence for the overall system. New inductive assumptions are epistemically validated by the appeal to previously justified inductive patterns that provide clues about what the future will bring. Furthermore, induction retains an intrinsic self-correcting nature, since general inductive rules can always be modified in the light of new observations that prove inconsistent with older cases. In employing the coherentist approach and in accepting its never-settled-once-for-all dimension, the method of induction defends the idea that it is reasonable to use past patterns as evidence for future cases. Indeed, “if anything will work to form accurate beliefs about unobserved things, induction will” (Feldman, 2002: 137). According to Goodman, within the field of science, the possibility of distinguishing between a law-like hypothesis (a generalisation that involves probable predictions) and accidental statements is given by a theory of confirmation in which regularity in past experiences is not sufficient. As a matter of fact, past experiences are a guarantor of regularity only until the present, and our rules of induction, to be

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sound, need further support. In order to explain this distinction, Goodman introduces (1955: 73) a parallelism between an inference in which the existence of a piece of copper that conducts electricity improves the credibility of the assertion that other pieces of copper will conduct electricity (law-like statement) and a second inference in which the fact that a man in this room is a third son increases the credibility of a statement asserting that all of the other men in this room are third sons (accidental statement). No prediction could be justified by referring only to a rule of inference, as it would work in case this rule were to be a logical principle grounded on syntactic meaning. Rather, every new inferential rule ought to prove compatible with past instances of inferential reasoning that we consider valid. In this sense, the validation process of rules of inference is constrained by the ‘confirmation’ provided by what we believe to be correct past examples of inferential reasoning. Such support is obtained through the achievement of an equilibrium between any rule of induction and a broad range of acceptable inferences.42 Naturally, the equilibrium that we achieve is intrinsically revisable, as all inferences that we initially think to be acceptable might end up requiring revision in the light of new observations that are inconsistent with the inference rule under evaluation. This kind of argument is obviously a circular one, as Goodman himself admits (1955: 64). However, as I have argued in the previous section, this circularity is a virtuous one because this method can actually increase our knowledge and prevent us from accidental inferences. Goodman argues that if one goes back and forth between potential principles (rules of induction) and practical inferences, then one becomes able to do away with vicious inconsistencies. Goodman introduces (1955: 72–75) a famous example to show that the inductive method tends to produce valid inferences that increase our knowledge of the external world. A valid theory of induction should correctly discriminate between the likelihood of these two predictions: (a) “all emeralds are green” (b) “all emeralds are grue” Where the predicate “grue” applies to all things that before a certain time t are green but after time t will become grue. According to the example, every emerald analyzed before time t appears to confirm both the general hypothesis that every emerald is ‘grue’ and also one stating that every emerald is ‘green’. How can a theory of induction account for the different degrees of probability that an emerald in the future will be ‘green’ or ‘grue’? The solution provided by Goodman is to distinguish between a weak and a strong form of coherentism. Weak coherentism focuses on establishing logical consistency among inferential beliefs of a large web of beliefs. But as I have shown in the previous section, in order to establish knowledge, coherentism ought to do something more than establishing logical consistency. Strong coherentism attempts to ascertain inferential chains among beliefs at different levels, involving first and second orders beliefs. Moreover, strong coherentism  “The process of justification is a delicate one of making mutual adjustments between rules and accepted inferences; and in the agreement achieved lies the only justification needed for either,” Goodman (1955: 64). 42

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looks for the establishment of epistemic connections of mutual implication and explanatory relations among many beliefs within the web of beliefs.43 If we look at a complex web of beliefs, we see that there are beliefs that play a wider justificatory role, since they are mutually implicated in many inferential chains. Such beliefs, which are sort of fixed points, are those beliefs that, more than others, provide support and explanation for the whole system of beliefs in equilibrium. Naturally, not even these cardinal beliefs are justified non-inferentially, since their validity depends upon the overall coherence and explanatory force of the entire system. And yet we should be aware that the more a belief is central to the system, the more it is costly to remove or revise it. Think for example of the principle of non-contradiction or the belief that the Earth is round and revolves around the Sun. Substituting these beliefs would involve an almost complete revision of the whole system of beliefs, since we will have to rebuild the inferential chains about logic as a discipline and as a method of reasoning and about a fundamental aspect of human life on earth and science as method of analysis of the external worlds. Even though basic beliefs do not exist within a coherentist approach to justification, central hypotheses are so epistemically costly to revise or remove that there is a presumption of correctness in their favor and against the validity of observations and beliefs that discount them. Ceteris paribus, coherentism provides us with reasons for rejecting a geocentric belief that runs afoul of the general theory of heliocentrism that has been reconfirmed historically by observation after observation. According to the paradigm of strong coherentism, we have sound reasons for discriminating between the law-likeness of the predicate ‘green’ and ‘grue’ observing that the existence of the predicate ‘grue’ would end up contradicting many historically validated beliefs about the physical properties of minerals. Since it is the entire system of inferentially connected beliefs to provide validation for a new hypothesis, there are sound epistemic reasons to support the hypothesis that “all emeralds are green”, rather than the hypothesis “all emeralds are grue”.

2.3.2 The Role of Reflective Equilibrium in the Rawlsian Framework I maintain that providing an adequate, technical, analysis of RE is fundamental for fully investigating the epistemic paradigm that implicitly supports Rawls’s justificatory strategy. Once I spell out this epistemic paradigm, I shall assess – in the next chapter  – whether this paradigm is indeed compatible with the nonideal circumstances of justification. Rawls, in his attempt to stick to a strictly freestanding

 Interestingly, Elvio Baccarini (2009) defines coherentism as a multidirectional way of reasoning, in the sense that actual agents do not always reason about moral matters from the general to the particular or viceversa. This definition of coherentism as multidirectional well captures one of the most important aspects of this approach, that is, the fact that coherentism accounts for the fact that there is no privileged epistemic perspective, and that our justificatory processes depend upon a mutual accommodation of beliefs at different levels. 43

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justification of the political conception, does not engage with a technical clarification of RE as an epistemic method. Conversely, in concluding this chapter I shall try to fill this theoretical gap. According to Rawls, RE is a procedure that accounts for the ordinary deliberation of individuals in moral reasoning. RE is introduced as a method for achieving an actual, but often unstable, equilibrium between our considered moral judgments and some general principles concerning practical reasoning.44 In this sense, RE perfectly expresses a coherentist approach: it cannot be the case that a principle of justice is justified if it does not cohere with the broad doxastic systems of beliefs held by citizens. RE, in fact, is the method through which principles of justice, already justified thanks to the argument of the original position, are assessed with regard to their compatibility with moral considered convictions and beliefs that agents deem very important within their systems of beliefs. Rawls writes (TJ: 20) that RE “is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation.” According to this description, the search for RE involves deliberative processes in which agents, ‘going back and forth’, assess both the validity of general principles, that have been already justified through an independent procedure, and the adequacy of their considered moral judgments. This deliberative procedure well expresses the coherentist intuition according to which, given our finite epistemic abilities qua human beings, no principles of justice or strongly held moral considered convictions can ever be justified as self-evident truths.45 Every principle of justice and every considered judgment is in theory always revisable, since inferential chains may be modified in order to maintain the overall coherence once a new reliable observation, fact or consideration ought to be included in the system. Providing sound epistemic reasons in favor of the intrinsic revisability of the outcomes of public processes of justification, being political notions, principles or democratic decisions, is probably the fundamental contribution of RE to a liberal justificatory paradigm.46  “From the standpoint of moral philosophy, the best account of a person’s sense of justice is not the one which fits his judgments prior to his examining any conception of justice, but rather the one which matches his judgments in reflective equilibrium,” Rawls (TJ: 46). 45  “I do not claim for the principles of justice proposed that they are necessary truths or derivable from such truths. A conception of justice cannot be deduced from self-evident premises or conditions on principles; instead, its justification is a matter of the mutual support of many considerations, of everything fitting together into one coherent view,” Rawls (TJ: 19). 46  “We can either modify the account of the initial situation or we can revise our existing judgments, for even the judgments we take provisionally as fixed points are liable to revision. By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium. It is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation. At the moment everything is in order. But this equilibrium is not necessarily stable. It is liable to be upset by further examination of the conditions which should be imposed on 44

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RE is the perfect expression of a modest view about political procedures of justification, for the political conception is justified as far as it accommodates agents’ comprehensive moral considered convictions. Even if a good philosophical argument can be provided for justifying specific principles of justice, still the full justification of these principles depends on the actual possibility that they can be coherently embedded within our doxastic system of beliefs. The role played by the philosophical argument is not mitigated in its theoretical force. Yet, this same argument is laid out starting from a coherentist perspective about the procedure of justification in its entirety. Indeed, if one grants justificatory and explanatory force to a procedure that goes back and forth readjusting our principles in the light of our considered moral judgments and vice versa, then a modest stance regarding the epistemic status of our moral beliefs is the most adequate to defend. Following the RE method, it results that in the everyday practice of moral reasoning, no principles or judgments are assumed by the agents as more than provisional fixed points.47 Rawls is therefore right in claiming (PL: 97) that “the struggle for reflective equilibrium continues indefinitely”. Already in TJ, the introduction of the method of RE hinted at the relevance of the personal perspective of agents in evaluating the congruence between their moral considered convictions and a general theory of justice. Political principles justified through the abstract and normatively engaging argument of the original position were assessed from the perspective of real citizens as well. It is true that in TJ the perspective of agents is still idealized, since the theory refers to considered judgments, therefore assuming an adequate epistemic process of filtering out unreasonable convictions and beliefs employed by agents in public processes of justification. In PL, with the introduction of different justificatory stages, the epistemic context is more blurred, and, as we have seen, there are three different viewpoints to take into consideration: the perspective of parties in the original position; the perspective of an idealized constituency of citizens and then the point of view of reasonable citizens here and now. For now, however, my goal is to illustrate the role that RE plays in TJ. I maintain that RE is both an individual and an unstable equilibrium that each agent attempts to achieve during the process of justifying principles of justice with regard to their personal perspective and the general coherentist procedure that grants the overall legitimacy of the whole justificatory strategy. In this regard, I differ from other authors that reduce the role of RE to the attempt to systematize a conception of justice already fully justified thanks to the development of the argument of the

the contractual situation and by particular cases which may lead us to revise our judgments. Yet for the time being we have done what we can to render coherent and to justify our convictions of social justice,” Rawls (TJ: 18). 47  Rawls himself describes relevant judgments and beliefs as fixed points. He claims: “There are questions which we feel sure must be answered in a certain way. For example, we are confident that religious intolerance and racial discrimination are unjust. We think that we have examined these things with care and have reached what we believe is an impartial judgment not likely to be distorted by an excessive attention to our own interests. These convictions are provisional fixed points which we presume any conception of justice must fit,” Rawls (1971: 19–20).

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original position. By contrast, I suggest that, already in TJ, RE can be interpreted as the background method that leads every stage of justification. In fact, Rawls outlines the device of the original position already mirroring latent background intuitions over justice that he believes reasonable citizens tend to support. Indeed, the same conceptions of justice that are compared in the original position must already have been determined by a procedure that depends, at least indirectly, on the RE method. In other words, the RE method provides both the input of the whole justificatory process – hinting at the background intuitions over justice that are latent in a social context – and the final output – providing a reconciliation between political principles and agents’ comprehensive judgments.48 In support of this interpretation, let me add that Rawls assumes that one of the most important roles for RE is to filter away political principles and moral considered convictions that result counterintuitive and, at the end of day, incongruent with the moral considered convictions loosely maintained by a majority of individuals. For example, Rawls in TJ criticizes the overall justifiability of utilitarianism – vis-à-vis the moral considered convictions of agents – since this theory “does not take seriously the distinction between persons” (TJ: 24). According to Rawls, there are good epistemic presumptions against the validity of a theory that implies some conclusions that are deeply incongruent with the background considered convictions that characterize the moral lives of individuals. Hence, it can be assumed that the method of RE, consistently with the characterization of coherentism that I provided in the previous section, plays a justificatory leading role in every step of the justificatory strategy. The justificatory relevance of RE becomes even more clear when we try to extend the justificatory strategy of PL to work against the unrestrained circumstances of democracy. RE, in fact, provides sound epistemic reasons in support of a justificatory procedure where both normative arguments and the epistemic circumstances in which an agent tries to evaluate such normative arguments against her system of beliefs are taken into consideration. Any attempt at justifying a political conception while fully respecting the agential autonomy of citizens calls for a justificatory method that appreciates the role played by the doxastic systems of beliefs that these citizens hold. RE, much better than other methods, always takes into consideration agents’ perspectives in providing support for a political conception. RE, as a coherentist method, stresses that there are not privileged points of view from which to assess the validity of a political conception. Instead, the perspective of every agent involved in public processes should be taken into consideration when assessing the congruence between the political module and citizens’ private views. In this sense, RE pushes for deliberative processes in which citizens argue collectively over the legitimacy of political principles in the light of their autonomous views concerning these matters. No one can be excluded assuming that she is certainly wrong.

 On the double role played by RE, Scanlon (2003: 153) claims that “the structure of the original position is itself justified by employing the method of reflective equilibrium.” Also, Jane English perfectly expresses this point (1977: 97): “The original position is a devise for unpacking our considered moral judgments in reflective equilibrium.” 48

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According to my interpretation, RE is an intrinsically liberal method, as it is consistent with the recognition of the fact of pluralism and with the assumption that fallible agents will always argue over relevant public matters without necessarily finding the best solution to the conflict at stake. As I have already claimed, the procedure of mutual adjustment between general principles and considered judgments held by moral agents can achieve stable results and yet be intrinsically revisable. New evidence can be brought into the picture, for example, or a new conflict can arise between different interpretations of the same general principle. In this sense, deliberative processes in which individuals are pushed to go back and forth evaluating general principles in the light of their considered convictions and vice versa are a perfect example of a general coherentist attitude exemplified by collective processes of adjudication. According to the interpretation of RE that I am outlining, this method accounts for the twofold dimensions of legitimacy that I have previously illustrated. In practical reasoning, the justificatory strategy must account for both the normative reasons in favor of a conception (the procedure for determining a fair framework of deliberation in the practical domain) and the reasons that are action-­ guiding for nonidealized agents (establishing coherence between general principles and agents’ considered moral judgments). The main goal that RE achieves is to demonstrate that these two aspects of justification can be reconciled in a coherent and unitary system. I assume that investigating the impact of the method of RE on the overall justificatory paradigm of political liberalism is strategic for clarifying one of the most relevant stake of this book, that is, arguing against the approach that assumes that the ideal phase is able to fully justify the political conception and that nonideal theory fulfills only remedial tasks. According to RE method, in fact, in order to properly justify the political conception, we need to look at the private perspectives of real citizens, since the actual coherence between beliefs and principles at different levels of the holistic system cannot be assumed in theory, but always requires an actual implementation of the method itself. The political conception ought to face unrestrained reality in order to prove its validity as an acceptable theory of justice focused on respecting the agential autonomy of citizens and establishing principles that are both desirable and feasible. Furthermore, in always being open to collective procedures of revision and in assuming an important role for public forms of deliberative contestation, RE proves to be consistent with moral phenomenology. RE, in fact, once is properly illustrated as a coherentist method, establishes a sensible narrative of how practical deliberation works and why genuine disagreement arises among (reasonable) agents who debate over evaluative matters in the attempt to establish public decisions for the political domain. Also, it explains why a historical shift in moral paradigms (for example, the ratification of the XIII Amendment of the U.S. Constitution abolishing slavery), or radical changes in the definition of who is a member of the constituency (for example, the establishment of universal suffrage granting women the right to vote in many democratic states), might conduce to drastic revisions to the holistic web of political principles and ideals sustained in reflective equilibrium, therefore imposing a revision of the social morality of

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different political contexts and consequently providing agents with sound reasons to revise their wide set of beliefs.

2.3.3 A Deliberative Interpretation of Reflective Equilibrium In this section I shall discuss two different readings of RE as a general method. This analysis is important, for a quite common confusion persists about the intrinsic value of RE as a method of justification in the moral domain. Indeed, very often the justificatory role of RE has been questioned. Some authors (Arras, 2007; Brandt, 1979, 1990; Hare, 1973), for example, have described RE as nothing more than a method for accommodating internal inconsistency among different beliefs held by an agent. This descriptive interpretation maintains that RE accounts for the ordinary experience in which we, as moral agents, have to choose among different moral doctrines or political principles. According to this interpretation, the substantial justification of different conceptions is already provided by other arguments (for example, the original position), and RE is just the method that every agent should adopt to fit this conception into her system of beliefs and values. According to this reading, RE is not a method of justification at all, but is rather an adequate method to resolve cognitive dissonance and establish congruence between a general moral or political conception and the moral considered convictions maintained by agents. By contrast, Thomas Scanlon (2003) argues that a proper understanding of RE involves an analysis of the deliberative dimension of this method. The deliberative interpretation of RE highlights its justificatory role. The method does not just allow to establish congruence between political principles with non-political comprehensive beliefs, but rather plays a fundamental role in moral deliberation by discriminating between collective legitimate decisions and decisions that are not publicly justifiable. Going back to the distinction between weak and strong coherentism, a deliberative interpretation of RE assumes that this method can play a stronger justificatory role, discriminating between valid political ideals and principles and publicly unsustainable ones. According to this reading, RE as a deliberative method assumes that considered moral judgments are exactly those judgments that are more likely to be correct and therefore able to filter away biased or fallacious reasoning. Granted their alleged epistemic reliability, considered moral judgments play a winnowing role in the deliberative process, imposing agents to let go of beliefs and/or principles that are incompatible with well-supported considered moral judgments. Following Goodman’s argument, we can say that considered moral judgments play in the procedure of practical deliberation the same role that law-like statements play within the framework of inductive logic. Considered moral judgments, as input of the overall justificatory strategy, play a similar heuristic role that past inferences play in providing an epistemic point of reference and confrontation for new inferences to be evaluated. As much as a new inference should be evaluated in the light of past inferences that are publicly considered as valid and reliable, a justificatory process for political principles should assess whether these principles reach outcomes that are

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counterintuitive with regard to the moral considered convictions that agents have. This parallelism emphasises once again how relevant Goodman’s theory of inductive logic has been to Rawls. However, important differences between practical reasoning and the domain of inductive logic must be stressed as well. In fact, considered moral judgments are never independently ‘given’ in the same sense in which empirical facts are. There is a sense in which at a very basic level empirical evidence is agent-independent − this holds true even when we assume a coherentist account of empirical knowledge (on this see Bonjour, 1976, 1985; Lehrer, 1974), whereas practical reasoning always involves the perspective of whoever holds the opinion. As Scanlon clearly points out (2003: 149): “in the case of empirical observations we may be convinced that something is the case without having any idea why it is. But moral judgments are not in general like this. Only very rarely is it clear to us that something is right, wrong, just, or unjust without our having some idea what makes it so.” RE, as a general coherentist method, stresses that the building blocks of a justificatory process in the practical domain are agents’ opinions and moral considered convictions, here and now. RE shows that in practical reasoning no choice between valid and non-valid principles is possible without taking into consideration our engagement as competent judges and without our ordinary judgments as clues toward a publicly legitimate solution. A coherentist approach maintains that the validity conditions of an argument are those according to which agents make a practice of judging it. Hence, given the fact that moral agents are unable to assume an external point of view for assessing their various considered moral judgments, a coherentist approach should argue that a principle is recognised as justified if and only if it coheres with agents’ other beliefs.49 In this sense, the epistemic relevance of RE transcends the domain of political liberalism, establishing a flexible justificatory method that is valid for any intersubjective domain. If we take RE as a general justificatory method for the collective enterprise, this helps us understand why collective reasoning in general is never infallible and that, in facing reality, we ought to accept the work in progress dimension of our knowledge building processes. In this regard, the well-known metaphor of Neurath’s boat hints at something intrinsic to our fallible status as knowers as well as builders of collective meanings and ideals. According to this image, “our ship of beliefs is at sea, requiring the ongoing replacement of whatever parts are defective to remain seaworthy” (Kvanvig, 2009: 3). We cannot either abandon the ship when a part needs replacement, nor keep sailing

 It seems to me that the connection between the argument of original position and RE could be understood exactly in these terms. Indeed, the original position provides us with a sound deliberative strategy for choosing among different conceptions of justice. Still, the conditions of objectivity for this procedure of selection are determined by the fact that actual actors are capable of considering such conditions as adequate. As Rawls (TJ: 17) affirms: “Conceptions of justice are to be ranked by their acceptability to persons so circumstanced. Understood in this way the question of justification is settled by working out a problem of deliberation: we have to ascertain which principles it would be rational to adopt given the contractual situation.” 49

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without mending the defective part. Collectively, we ought to repair the defective part, while remaining on the boat.

2.4 Wide Reflective Equilibrium in the Real World I have underscored many times that Rawls does not provide a technical analysis of the proper epistemic dimension of RE for a clear methodological strategy, that is, granting the neutrality of his political theory vis-à-vis metaphysical and epistemological theories and contested approaches. Conversely, refuting his stance of epistemic abstinence, in what remains of this chapter I am going to spell out the epistemic dimension of his justificatory paradigm, thereby filling a void and illustrating that RE is such a powerful method that its relevance indeed transcends the Rawlsian use of this methodology. My impression is that the pivotal role played by RE has often been overlooked in the Rawlsian secondary literature. By contrast, I argue here that RE, as a well-developed coherentist method, is compatible with the actual circumstances of justice (that I will illustrate in the next chapter) and it allows us to keep together, though analytically distinct, the two dimensions of legitimacy that characterize political versions of liberalism. In Chap. 4, I will illustrate the specific role that the method of RE can play in the ideal and nonideal phase of the justificatory paradigm, respectively. For now, I need to investigate the literature on RE further, specifically looking at Norman Daniels’s Justice and Justification. The Reflective Equilibrium in Theory and Practice (1996).

2.4.1 Narrow and Wide Reflective Equilibrium According to Norman Daniels (1996, 2009), the author who, more than others, has tried to broaden the conceptual analysis around the Rawlsian concept of RE, a coherentist theory is composed of almost the same features in both moral and scientific reasoning. These features are: –– considered judgments held by agents; –– simplicity as an epistemic general ideal; –– methodological conservatism. The initial value attributed to intuitive judgments derives from the fact that they are ours. Of course, this does not mean that all our judgments are meaningful and correct. Rather, the initial presumption of credibility toward our strongly held moral considered convictions should then be re-evaluated in the confrontation with independently justified political principles and the moral considered convictions held by other members of the constituency with whom we tend to disagree. Again, the deliberative dimension of RE is fundamental to establish this method as properly justificatory within an intersubjective exchange of reasons. Daniels is well aware that the

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‘presumption of credibility’ of our moral basic considered convictions and background notions is problematic. For this reason, Daniels, thanks to a distinction provided by Rawls in his “Independence of Moral Theory” (1974), promotes an important illustration of the differences between a narrow reflective equilibrium (henceforth NRE) and a wide reflective equilibrium (henceforth WRE). NRE is a procedure that tries to achieve a sound conciliation between our strongly held considered convictions about what the concept of right requires in the political domain and some general principles that should regulate our collective lives with reference to a publicly justified notion of what is right. General principles ought to be ‘amended’ in order to adequately mirror agents’ basic intuitions on justice. It may also be the case that soundly justified principles provide agents with enough reasons for revising some of their basic moral considered convictions. Given the deep, wide-­ spread pluralism that characterizes contemporary democracies, citizens tend to establish widely different NRE. Even though helpful, this restricted version of RE does not provide us with a general procedure for granting political legitimacy to publicly justified principles. WRE, instead, fulfills justificatory as well as conciliatory goals. WRE establishes a deliberative process in which the political conception is confronted both with agents’ moral considered convictions and relevant background theories that are stably accepted by a majority of the constituency in the society of reference. According to this stronger version (with regard to the coherentist method employed), to grant epistemic relevance to the method, the general conception ought to prove its consistency with a wide array of background theories, such as, for example, laws of logic; notions of jurisprudence; sound conceptions of personal identity; theories about the agential autonomy of citizens; a fallibilistic account of human knowledge or the opposite; metaphysical and religious conceptions; physical theories on external objects; etc. The epistemic role played by relevant background theories underscores two important aspects of the justificatory paradigm that I am defending. First, the regulative ideal of strong coherentism states that our ordinary epistemic processes, given our intrinsic fallibility, in order to have adequate justificatory force should try to establish inferential relations – or at least avoid strong incongruences – that are not limited to a specific sub-sets of the holistic web of beliefs, but rather extending the sectors of the coherent systems of beliefs that are related with one another.50 Hence, Daniels’ introduction of background theories in the picture is the demonstration that RE, when interpreted as a method that looks to establishing a strong form of coherentism, tries to reach harmony between political principles and beliefs and principles that are also pertinent to domains other than the political one. Second, given that the goal of political liberalism is providing a justification valid also under nonideal circumstances, the ‘wide justificatory scope’ of WRE allows to broaden our perspective on the motivational aspects of political legitimacy. Indeed, agents are

 “More defensible is the method of wide reflective equilibrium, however, since it does not isolate itself from any knowledge or wisdom, no matter how far afield, but takes into account everything that may seem pertinent,” Sosa (1991: 262, emphasis in original). 50

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motivated or deterred from stably supporting a political conception for a vast array of reasons, not all of them being strictly moral or political in kind. I maintain that RE is a regulative ideal for the whole justificatory strategy of political liberalism. Again, consistently with a general coherentist approach, we cannot evaluate the actual likelihood that a majority of citizens would be able to establish wide reflective equilibria that sustain the validity of a political conception without not concretely being engaged in this public deliberative process. For, without an actual implementation of the procedure itself, RE would not be able to demonstrate its validity as an autonomous form of justification. A theorist who defends RE should accept the burden of proof, because it is never granted that achieving adequate coherence between political and non-political values and beliefs necessarily provides probative force in favor of public justificatory practices. For this reason, it is important to understand that the justification of the procedure of RE as a valid method tout court already hinges on the correct implementation of such method.

2.4.2 Strong Coherentism: Initial Credibility and the Epistemic Relevance of Fixed Points WRE is a version of RE that tries to establish evidential connections among beliefs at different levels and from various sectors of the holistic systems of beliefs. In this sense, WRE is a strong version of coherentism, and, logically, consistency is never enough to guarantee justificatory force. Exactly as for coherentism in general, WRE works adequately if some beliefs, at the center of the holistic system of beliefs, have an epistemic priority that is publicly acknowledged. These fixed points are what Daniels calls (1996: 47–65) “Archimedean points”: beliefs that are not foundational, but still, yield strong evidential force to the overall justificatory procedure. The epistemic priority of the Archimedean points is reflected in the fact that among two different principles of justice, the coherentist method will tend to select the one that is more compatible with as many as Archimedean points as possible. Indeed, if our whole theory of justice has already passed through different stages of justification and has also demonstrated its ability to achieve coherence, then it is quite understandable that the same theory will legitimately refuse particular principles that might go against many of the fixed points of the theory. At the end of the day, coherentism as a general method suggests that an entire system of beliefs that are already justified and evidentially connected with one another is more likely to be correct than a system in which many elements are incongruent with one another. For example, if we try to include in our WRE a principle q that states: ‘It is right to inflict pain gratuitously on another person’, then it quite easy to understand that including this principle within a general moral system of beliefs will impose a deep and very demanding revision of many of our fixed Archimedean points with regard to the meaning and value of the term ‘right’. Therefore, the overall coherence of the entire

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system of beliefs provides us with a good epistemic reason to be skeptical toward the validity of principle q. This conclusion is supported by the regulative ideal of simplicity, that according to Daniels is the second characteristic feature of RE as a coherentist method. The simplicity regulative ideal imposes the respect of the ‘law of least action’. This law, indeed, perfectly explains why it would be so difficult, both from an intuitive perspective and from a theoretical point of view, to include the principle ‘It is right to inflict pain gratuitously on another person’ within a general theory of justice justified through the reference to agents’ coherent sets of beliefs. The procedure of RE, in discriminating between two possible options, should assume a presumption of validity in favor of the option that would better allow to respect the law of least action. This procedural implementation of the ideal of simplicity reflects the intuitive idea that the more changes are needed in an already coherent system to include a new hypothesis, the less reliable this hypothesis probably is. According to this interpretation, the difficulty of incorporating a principle about the right to inflict gratuitous pain on others into our conception of justice is also expressed by the fact that including this principle would imply the need of dramatically changing many beliefs within the system of beliefs and some of them would also be Archimedean points.51 Therefore, the law of least action constitutes a presumptive reason against the validity of principle q. Every already justified principle or belief shares a sort of presumptive-validity-status from the fact of having already being included in the system through a WRE.  Indeed, every justified sentence of our theory of justice provides “intersubjective checkpoints in the sense that if a moral view or theory could be shown to conflict with these sentences, this would generally be conceived as a decisive argument against the theory” (Tersman, 1998: 95). The presumptive validity attributed to beliefs and principles already embedded within a coherent system established in WRE implies that these beliefs and principles are to be intended as valid-until-proven-otherwise. Notwithstanding the less than definitive justification for these beliefs and principles, until they have been proven wrong (it is worth highlighting that of course this might never happen), these beliefs and principles are the epistemic points of reference to assess the possible reliability and validity for new hypotheses. This aspect is described by Daniels as the third fundamental feature of coherentism, namely, its virtuous conservatism. Methodological conservatism explains why beliefs and principles already included within the coherent system have an epistemic priority over new hypotheses as presumptively valid. As we know, paradigm shifts in science happen (Kuhn, 1962). These shifts imply a wide revision of a previously dominating paradigm, since that paradigm result incompatible with new phenomena that cannot be rebutted, notwithstanding their incongruence with a coherent and allegedly reliable web of  Concerning this point, I want to recall the fact that the discrimination between the likelihood that all emeralds are ‘green’ or ‘grue’ is determined through the recognition that the acceptance of the predicate ‘grue’ as the most likely hypothesis would disconfirm too many other physical hypotheses that are considered adequately justified and whose abandonment would imply revising many central assumptions about physical objects. 51

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scientific beliefs. Naturally, there have been paradigm shifts in the ethical domain too. Think for example of when western societies rebutted slavery as a completely immoral and unjustifiable social structure. Or when the Universal Declaration of Human Rights was ratified internationally establishing a universal commitment toward human rights, which assumed the status of an ethical lingua franca. The fact that paradigm shifts happen seems in contradiction with methodological conservatism. However, it is important to understand the stark difference between methodological conservatism on the one hand, and a bias in favor of the status quo on the other hand. In a sense, RE instantiates a justificatory method that is both conservative and constantly open to revisions. RE as a justificatory procedure is always on the verge of a ridge: it is a work in progress method, always focused on establishing wider and stronger inferential connections among beliefs of the system, and yet it is also a method that presupposes a presumption of validity for beliefs already included in the holistic system.52 Furthermore, RE faces charges both of relativism – for the input of the justificatory procedure are our considered moral judgments – and of maintaining a form of hidden intuitionism, as some elements of the theory are given epistemological priority. Also, RE is illustrated as a general procedure for justifying practical principles in the face of individuals’ moral considered convictions. But RE can also be described as the individual state that every single agent achieves after an internal struggle to find equilibrium among contrasting personal beliefs, judgments and principles. All these elements rightly apply to RE as a general method and yet most of them appear to be quite in conflict with one another. Moreover, all criticisms are applicable to some elements of the method, but not to the whole RE procedure. My suggestion here is, again, to respect the coherentist general assumption and evaluate RE in its entirety, as a process that can be assessed just after it has been already laid out.  As we shall observe later in the chapter, this presumption of validity attributed to the beliefs that are already included in the holistic system has been often criticized as verging toward a form of hidden intuitionism. Following this path, it is worth asking whether my account of RE is in any genuine sense different from moderate versions of intuitionism, such as Robert Audi’s defeasible intuitionism (2008, 2011). Audi’s intuitionism assumes that there are beliefs at different levels of generality and each of them is plausible in virtue of being self-evident. However, these beliefs are not isolated, some of them are in such relation that they can give each other some support or serve as defeaters of each other. Importantly, for Audi, we can have non-inferential but defeasible justification for those beliefs, thus his approach is compatible with a general fallibilistic overlook of human epistemic capacities and with the realization that we often face rational forms of disagreement while addressing other people beliefs. My general intuition here is that my account and Audi’s are in fact quite similar in the broad epistemological account they rely upon, whereas we disagree terminologically (but I believe substantially as well) in our preference for defining presumptively valid beliefs within the doxastic system of beliefs either as provisional fixed points or as defeasible self-evident intuitions. The open revisability of the provisional fixed points is what interest me, given that I contend that RE is the most adequate method for moral reasoning in the face of genuine disagreement and given the contextual differences in individuals’ uptake of the moral discourse. By contrast, from a strictly epistemic perspective, Audi is interested in investigating “our rational capacities to perceive truth by certain kinds of non-inferential discernment” (2008: 490). I thank an anonymous reviewer for suggesting me to better distinguish my account of RE as a coherentist method from Audi’s moderate intuitionism. 52

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Generally speaking, I regard RE as an adequate, efficient and reasonable method of justification for political matters under nonideal circumstances. First, RE is an adequate method because it takes into account relevant aspects of our ordinary experience as fallible agents without renouncing to establish principles of human conduct for collective settings. In this sense, RE illustrates a way for reaching a balance between the search for normatively binding justificatory arguments and the focus on the motivational dimension of political legitimacy. Second, RE is efficient because it puts in place a feasible procedure for justifying political principles without running afoul of moral considered convictions held by citizens. Following the RE method we have a plausible procedure for publicly justifying collective decisions, meanwhile respecting the agential autonomy of citizens. Third, RE is a reasonable method, as it is always open to re-examinations and to the possibility of revising or improving our justificatory processes in the face of new evidence or occurrences. To conclude, I think that Scanlon is completely right when he affirms (2003: 149): “it seems to me that this method, properly understood, is in fact the best way of making up one’s mind about moral matters and about many other subjects. Indeed, it is the only defensible method: apparent alternatives to it are illusory.”

2.4.3 Criticisms of the Method: A Disguised form of Intuitionism or a Too Relativistic Process? Before proceeding with the illustration of the nonideal epistemic circumstances of justice, allow me to briefly mention the most relevant critiques directed at RE as an adequate justificatory method in the moral and political domains. First, some thinkers have criticized RE claiming that the justificatory procedure employed by this method is actually rigged. According to this argument, no justificatory force could be attributed to a coherentist argument for the justification of principles of justice because these principles, within the RE procedure, need only to match our considered moral judgments in order to be legitimated as valid (Copp, 1984; Raz, 1982). Therefore, all the alleged justificatory weight of the coherentist procedure would rest on establishing a RE, and this procedure, the critics claim, is too weak epistemically for guaranteeing any form of objectivity to the conclusions reached. To answer this criticism, let us recall that the RE procedure imposes a stronger epistemic requirement than logical consistency: beliefs at different levels should be linked through explanatory connections and, moreover, to establish a virtuous circularity the requirement that non-trivial portions of the justificatory chain are disjointed should be satisfied. However, I am ready to concede that it might be that the charge of being too weak a method, a sort of ‘rigged’ system that artificially presses for consistency, can indeed apply to trivial forms of NRE. However, this charge loses force when referred to WRE. The method of WRE has the goal of establishing a strong form of coherence in which the web of beliefs is sustained by evidential relationships of mutual implication among beliefs, principles and background

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theories at different meta-levels. The coherentist method, when applied thoroughly, provide an adequate procedure for revising or rejecting considered judgments that, even though presumptively assumed as valid, are now revised, given their incompatibility with the WRE process in the long run. According to this strategy, a system that achieves maximal explanatory coherence confers justification on beliefs that are part of the coherent system, as this system is determined by a process of cognition that is intrinsically normative and capable of producing a self-correcting procedure. Hence, the charge of conservatism, which sounds so reasonable, at the end loses its force because RE is always both a procedure for achieving agreement and a method open to constant revisions and adjustments, providing epistemic tools for its own correction.53 As the opposite face of the same token, other authors have criticized the epistemic role played by provisional fixed points claiming that a justificatory method that is constrained by the reference to contextually presumptively valid beliefs falls into relativism. Concerning this critique, it is worth noting that the charge of relativism could be faced only if the fact of starting from some moral ‘facts’, that is, our considered moral judgments, is justified taking into consideration the whole justificatory procedure with its independent stages of evaluation. Indeed, in the practical domain, if we refute as implausible any form of foundational belief, then we find ourselves as theorists, and also as moral agents, in exactly the same impasse at which Goodman arrived while analyzing the theory of confirmation in inductive logic. This means that we need to accept that the epistemic starting point of our justificatory processes as fallible agents is the place where we are. Thus, the input of the justificatory procedures necessarily involves our ordinary judgments about justice and morality. However, WRE has the goal of discriminating among different conceptions of justice appealing not just to our ordinary reasoning as moral agents, but instead to broaden the circle of justification beyond moral beliefs, including in the deliberation background theories of various natures. This enlargement of the number of justified elements that must be in coherent equilibrium offers and increments the evidential force of the whole system. The difference between a simply descriptive procedure that accounts for our sense of justice as moral agents and the attempt to produce public procedures of justification about adequate behaviours in collective settings lies in this attempt to establish the largest possible justificatory circle (Tersman, 1992, 1993). A second important criticism focuses on the epistemic priority attributed to the Archimedean fixed points. According to some authors (Brandt, 1979; Hare, 1996; Singer, 1979) the RE method is a disguised form of intuitionism, since the epistemic priority attributed to the fixed points is not justified inferentially, but instead assumed a priori. According to these critics the provisional fixed points are non-inferential  Blanshard (1939: 286) for example, referring to the intrinsic epistemic aspects of a coherentist paradigm, claims: “The charge of conservatism is thus a mistake. It assumes that the system we must take as base is a system of first-order beliefs. But we have seen that when beliefs of the second-order are included, as they have every right to be, we have a system that provides for its own correction.” 53

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self-evident beliefs that the RE method disguises as only provisionally justified, while it is clear to everyone that some of these fixed points are indeed irreplaceable. My reply here relies on stressing the intrinsic openness to revision as one of the regulative ideals of coherentism as a general theory of justification. Even if it is really hard to believe that the principle y ‘it is wrong to inflict pain gratuitously on another person’ can be substituted in a general system of beliefs with the principle q ‘it is right to gratuitously harm another person’ in principle this shift is always an option on the table. Probably a very unlikely option, but still an option. Substituting principle y with principle q would be extremely costly, both epistemically (since it would require to revise many inferential chains that include the principle y) and morally (how many more generally accepted principles would be shaken by this shift?). And yet we cannot rule out this possibility as impossible (for a similar defence of WRE against criticisms, see Nielsen, 1982a, b, 1989, 1994).54 As a final criticism, it is worth mentioning that WRE, as every coherentist method, is accused of ‘begging the question of skepticism’ (Copp, 1990; Scanlon, 2003). Recalling the no-contact-with-reality-objection, we can wonder whether a stable WRE might achieve strong coherence, but without any certainty that the justified hypotheses tell us something relevant about the external world. As for coherentism in general, WRE can be defended through an indirect strategy (Brink, 1989: 125–133). In contrast with other justificatory theories, the skeptical challenge is taken into consideration so seriously by coherentism, that a definitive refutation of skeptical scenarios is indeed impossible. And yet, a coherent system of justification, especially one that tries to establish inferential chains connecting beliefs at different meta-levels, constitutes the best answer to the question of skepticism under nonidealized epistemic circumstances.55 As in the case of inductive logic, there cannot be a definitive argument for granting the validity of induction as an epistemic procedure for yielding justification. Yet, our cognitive abilities do not provide us with a better option for establishing a reliable reasoning pattern to make plausible hypotheses starting from observations. Even though the existence of external objects cannot be granted once for all as a self-evident truth (think for example of the skeptical scenario of brains-in-the-vat) still we can conclude on the justifiability of the belief about their existence thanks to an inference to the best explanation (Feldman, 2002; Lehrer, 1974). According to this argument, the belief about the existence of external objects is plausibly justified within our coherent system of beliefs as it is assumed  Daniels is more trenchant than I am in claiming (1996: 28) that some Archimedean points are indeed almost irreplaceable: “Since all considered judgments are revisable, the judgment ‘It is wrong to inflict pain gratuitously on another person’ is, too. However, we can also explain why it is so hard to imagine not accept it, so hard that some treat is as a necessary moral truth. To imagine revising such a provisional fixed point we must imagine a vastly altered wide reflective equilibrium that nevertheless is much more acceptable than our own. For instance, we have to image persons quite unlike the persons we know.” 55  Keith Lehrer (1974: 202), for example, introduces as a normative criterion for assessing the validity of a coherentist explanation a probabilistic principle: “If one seeks a guarantee of truth from justification, the expected value of believing some statements is at a maximum only if the probability of the statements is one.” 54

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to be a better explanation for many other beliefs we happen to hold, in contrast with the belief that sustains the brains-in-the-vat hypothesis. Naturally, this kind of indirect reply is not going to satisfy any critic that upholds a demanding epistemic view about what is epistemically required for granting the justification of a belief. Still, I do believe that this reply is the only one that is available when we properly analyze the actual epistemic circumstances we are embedded in. The goal of the next chapter is exactly that of spelling out these epistemic circumstances and then to defend a modest approach in moral epistemology. I shall argue that a modest approach expresses the best scheme available to us − as moral agents constrained by the limits of our rationality − for establishing a normatively binding, and yet realistic, procedure of justification for political institutions and practices. An epistemically modest account can be described around four fundamental benchmarks: (1) a doxastic presupposition that highlights the fundamental deliberative role played by moral agents as they are the last authority for determining what principles are indeed compatible with their wide set of beliefs; (2) a fallibilist account of moral knowledge; (3) a coherentist theory of epistemic justification and (4) a modest account of objectivity according to which the objectivity of the moral discourse rests on the correctness-apt deliberative procedure we produce as moral agents and that involves some correctness criteria that are publicly justified through the exchange of reasons.

References Ackerman, B. (1983). What is neutral about neutrality? Ethics, 93(2), 372–390. Arras, J. (2007). The way we reason now: Reflective equilibrium in bioethics. In B.  Steinbock (Ed.), The Oxford Handbook of Bioethics (pp. 46–71). Oxford University Press. Audi, R. (2008). Intuition, inference, and rational disagreement in ethics. Ethical Theory and Moral Practice, 11, 475–492. Audi, R. (2011). Epistemology. A Contemporary Introduction to the Theory of Knowledge (3rd ed.). Routledge. Baccarini, E. (2009). Moral epistemological coherentism, contextualism, and consensualism. Croatian Journal of Philosophy, 9(25), 69–89. Bagnoli, C. (2001). Rawls on the objectivity of practical reason. Croatian Journal of Philosophy, 1(3), 307–331. Bagnoli, C. (2002). Moral constructivism: A phenomenological argument. Topoi, 21(1-2), 125–138. Bagnoli, C. (Ed.). (2013). Constructivism in ethics. Cambridge University Press. Blanshard, B. (1939). The nature of thought (Vol. 2). Allen & Unwin. Bonjour, L. (1976). The coherence theory of empirical knowledge. Philosophical Studies, 30(5), 281–312. Bonjour, L. (1985). The structure of empirical knowledge. Harvard University Press. Brandt, R. (1979). A theory of the good and the right. Oxford University Press. Brandt, R. (1990). The science of man and wide reflective equilibrium. Ethics, 100(2), 259–278. Brink, D. O. (1989). Moral realism and the foundations of ethics. Cambridge University Press. Clarke, S. (1969 [1706]). Discourse on natural religion. In D.  D. Raphael (Ed.), The British Moralists 1650–1800 (Vol. 1, pp. 224–261), Clarendon Press. Cohen, G. A. (2003). Facts and principles. Philosophy and Public Affairs, 31(3), 211–245.

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Huemer, M. (2005). Ethical intuitionism. Palgrave Macmillan. Kuhn, T. (1962). The structure of scientific revolutions. University of Chicago Press. Kvanvig, J. (2009). Coherentist theories of epistemic justification. Stanford encyclopedia of philosophy, 1–28. Larmore, C. (1996). The morals of modernity. Cambridge University Press. Larmore, C. (2008). The autonomy of morality. Cambridge University Press. Lehrer, K. (1974). Knowledge. Oxford University Press. (reprinted 1978). Liveriero, F. (2018). Does epistemology matter? Political legitimacy in the face of disagreement. LPF Annals, 2, 1–42. Maffettone, S. (2010). Rawls: An introduction. Polity Press. McCarthy, T. (1994). Kantian constructivism and reconstructivism: Rawls and Habermas in dialogue. Ethics, 105(1), 44–63. Moore, G. E. (1993 [1903]). Principia Ethica, T. Baldwin (Ed.). Cambridge University Press. Neal, P. (1990). Justice as fairness: Political or metaphysical? Political Theory, 18(1), 24–50. Nielsen, K. (1982a). Considered judgments again. Human Studies, 5(1), 109–118. Nielsen, K. (1982b). Grounding rights and a method of reflective equilibrium. Inquiry: An Interdisciplinary Journal of Philosophy, 25(3), 277–306. Nielsen, K. (1989). Reflective equilibrium and the transformation of philosophy. Metaphilosophy, 20(3–4), 235–246. Nielsen, K. (1994). Methods of ethics: Wide reflective equilibrium and a kind of consequentialism. Journal of Social Philosophy, 25(2), 57–72. Paul, D. (1993). Balance and refinement: Beyond coherence methods of moral inquiry. Routledge. Price, R. (1969 [1758]). A review of the principle questions in morals. In D. D. Raphael (Ed.), The British Moralists 1650–1800, II (pp. 131–198). Clarendon Press. Putnam, H. (1981). Reason, truth, and history. Cambridge University Press. Quine, W. V. (1951). Two Dogmas of empiricism. The Philosophical Review, 60(1), 20–43. Quine, W. V. (1969). Epistemology naturalized. In Id (Ed.), Ontological relativity and other essays (pp. 69–90). Columbia University Press. Quong. (2011). Liberalism without perfection. Oxford University Press. Rawls, J. (1951). Outline of a decision procedure for ethics. The Philosophical Review, 60(2), 177–197. Rawls, J. (1999 [1971]). A theory of justice (rev. ed.). Belknap Press. Rawls, J. (1974). The independence of moral theory. Proceedings and Addresses of the American Philosophical Association, 48, 5–22. Rawls, J. (1980). Kantian constructivism in moral theory. The Journal of Philosophy, 77(9), 515–572. Rawls, J. (1985). Justice as fairness: Political not metaphysical. Philosophy & Public Affairs, 14(3), 223–251. Rawls, J. (1987). The idea of an overlapping consensus. Oxford Journal of Legal Studies, 7(1), 1–25. Rawls, J. (1996 [1993]). Political liberalism (2nd ed.). Columbia University Press. Rawls, J. (1995). Political liberalism: Reply to Habermas. The Journal of Philosophy, 92(3), 132–180. Rawls, J. (1997). The idea of public reason revisited. The University of Chicago Law Review, 64(3), 765–807. Rawls, J. (1999). The law of peoples. Harvard University Press. Raz, J. (1982). The claims of reflective equilibrium. Inquiry, 25(3), 307–330. Raz, J. (1985). Authority and justification. Philosophy and Public Affairs, 14(1), 3–29. Raz, J. (1986). The morality of freedom. Clarendon Press. Raz, J. (1990). Facing diversity: The case of epistemic abstinence. Philosophy and Public Affairs, 19(1), 3–46. Ross, W. D. (2002 [1930]). The right and the good. Clarendon Press. Sala. (2013). The place of unreasonable people beyond Rawls. European Journal of Political Theory, 12(3), 253–270.

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Chapter 3

An Epistemic Reading of the Ideal of Co-authorship

Fallibilism is an anti-dogmatic intellectual stance or attitude: an openness to the possibility that one has made an error and an accompanying willingness to give a fair hearing to arguments that one’s belief is incorrect. Adam Leite (2010: 370). This reasonable society is neither a society of saints nor a society of the self-centered. It is very much a part of our ordinary human world, not a world we think of much virtue, until we find ourselves without it. Yet the moral power that underlies the capacity to propose, or to endorse, and then to be moved to act from fair terms of cooperation for their own sake is an essential social virtue all the same. John Rawls (PL: 54). Political equality is good in part because it does just that: it fittingly treats people as one should expect authors of their own lives to be treated when it comes to matters of common concern. James Lindley Wilson (2019: 62).

Abstract  The analysis I develop in this chapter aims at illustrating in a technical sense the epistemic nonideal circumstances that characterize our social life as agents embedded in intersubjective settings. I defend a version of political liberalism that is willing to clarify its epistemic tenets, instead of supporting the Rawlsian strategy of epistemic abstinence. My goal is to show that there is something important to say, epistemically, about what the fact of entrenched disagreement normatively entails for agents involved in intersubjective deliberation. The heart of this proposal is that given certain epistemic circumstances (i.e. the doxastic presupposition; a fallibilist clause; pervasive disagreement due to an opaque appraisal of evidence; our limited epistemic capacities), agents have good reasons for respecting a symmetric credibility constraint. Therefore, when sincerely engaged in a decision-making process, they must attribute some (even minimal) epistemic credibility to other parties’ perspec© Springer Nature Switzerland AG 2023 F. Liveriero, Relational Liberalism, Philosophy and Politics - Critical Explorations 24, https://doi.org/10.1007/978-3-031-22743-1_3

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tives. Finally, I connect this debate with an illustration of reasonableness as a virtue of liberal citizenship and claim that the epistemic dimension of this virtue has not been adequately investigated. I conclude that reasonable citizens, in accepting the limits of their epistemic abilities, should be ready to share political and epistemic authority with their fellow citizens. According to my paradigm, this characterization of democratic political agency is grounded in the analysis of the epistemic circumstances of politics and rests on the normative ideal of democratic co-authorship. Keywords  Ideal of co-authorship · Reasonableness · Opacity respect · Political epistemology · Intellectual modesty The analysis I develop in this chapter aims at illustrating in a technical sense the epistemic nonideal circumstances that characterize our social life as agents embedded in intersubjective settings. As I argued in the previous chapter, I defend a version of political liberalism that is willing to clarify its epistemic tenets, instead of supporting a Rawlsian-like strategy of epistemic abstinence. First, I maintain, along with other authors (Gaus, 1996; Raz, 1985, 1990), that it is not possible to adequately build up a justificatory paradigm for a political conception without accompanying it with an analysis of the epistemic approach that supports this enterprise. Second, I argue that there is something important to say, epistemically, about what the recognition of the fact of disagreement entails normatively for agents involved in intersubjective deliberation. Fabienne Peter (2007, 2008, 2013b), whose investigation of the epistemic foundations of political liberalism has been an inspiration to me, clearly states that the existence of genuine disagreement is one of the most important elements of a prima facie argument in favor of democracy. As I have already claimed in the introduction, I agree with this illustration of disagreement as one the raison d’êtres of democracy, for democracy is described as a presumptively legitimate method for selecting collective decisions against a backdrop of unsolvable disagreement among members of the constituency. Now I want to investigate what role the recognition of genuine disagreement as an unavoidable feature of real-world democracies can play in the liberal project for granting legitimacy to political decisions and political authority (Anderson, 2006, 2008; Peter, 2008; Talisse, 2008, 2009). In my attempt to vindicate an autonomous justificatory role for the nonideal phase of a liberal theory of justice, I ought to clarify what are the epistemic circumstances that characterize deliberative exchanges among real-­ world citizens over political matters. In general, among the actual circumstances of justification that tend to have an impact on the adequacy and efficacy of political theory we can mention: the impossibility of assuming strict compliance with the principles of justice by citizens; unfavorable historical, social and economic conditions; the constant risk of indeterminacy and/or inconclusiveness for collective-­ decision processes; the fallibility of humans’ cognitive capacities; a deep and wide-spread disagreement among agents; human vulnerability; structural and historical forms of injustice; the difficulty to establish and maintain efficacious processes of institutional design (Farrelly, 2007: 847). These actual circumstances of justification can further be divided into epistemic circumstances and circumstances

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regarding contextual, historical and social features. In focusing my analysis on intersubjective exchanges among agents over evaluative matters I believe that we should primarily clarify what are the actual epistemic circumstances that affect collective deliberative processes. Specifically, in this chapter I illustrate three epistemic circumstances and draw some important conclusions from this analysis. The first circumstance concerns the justificatory procedures individually employed by agents for assessing the validity of their beliefs. The second circumstance regards the intrinsic opacity of our epistemic processes of appraisal of evidence and it is related to the attempt, as theorists, to establish which theory of knowledge is more adequate (and plausible) to account for our processes for validating beliefs. Finally, the third circumstance pertains to the epistemic constraints that characterize intersubjective exchanges of reasons among individuals who strongly disagree between one another. In the first section of this chapter I analyze the epistemic processes for validating beliefs and hypotheses and I argue that our fallibility as epistemic agents is an intrinsic feature of our nature. Given our limited cognitive abilities, it is then possible to argue that some forms of disagreement are indeed genuine, and not simply the outcomes of our faulty reasoning. In the second section I widen the scope of the analysis by drawing some preliminary conclusions about the normative commitments that we can derive from the description of citizens in the terms of fallible agents engaged in public forms of deliberation over contested evidence. Here, grounding my analysis in the epistemology of disagreement literature, I conclude that fallible agents owe it to each other to recognize some sort of epistemic symmetry when they are engaged collectively in assessing evaluative matters. Finally, in Sect. 3.3.3, I analyze the notion of reasonableness and claim that the epistemic dimension of this practical virtue has not been adequately investigated. My goal here is to defend a specific account of reasonableness as a virtue of liberal citizenship and to properly illustrate the epistemic dimension of this virtue.

3.1 For a Modest Epistemic Paradigm 3.1.1 The Doxastic Presupposition After having introduced coherentism as an adequate theory of knowledge, I now illustrate what I call a modest epistemic paradigm for practical reasoning in general. The first feature of this modest paradigm is illustrated by the doxastic presupposition. This presupposition assumes that, when dealing with epistemic processes for assessing and justifying beliefs and hypotheses, the doxastic perspective of agents cannot be bracketed. This conclusion is well-exemplified by the distinction between two dimensions of the epistemic practice of justifying a belief (Scanlon, 2003; Turri, 2010): (a) to justify a principle or judgment is to demonstrate that it is supported by good and sufficient reasons; (b) for justifying the same principle or judgment, though, it is also relevant to show that agents are indeed justified in holding such principle or judgment.

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This distinction highlights the difference between propositional justification and doxastic justification. The former justification refers to the conditions under which a proposition can be proved to be justified independently of what agents happen to believe; whereas the latter accounts for the deliberative process through which an agent justifiably holds some beliefs. According to the doxastic presupposition, the epistemic role of justification is not exhausted by the introduction of a set of reasons ‘R’ that provides a propositional justification for p. Rather, if the epistemic value of a justification partly hinges on an assessment of the deliberative role played by epistemic agents, then any comprehensive justification should involve a doxastic analysis that focuses on the actual possibility that an agent S believes, for sound reasons, that p. Indeed, the provision of a set of good reasons ‘R’ is not a sufficient condition for agent S to validly believe that p. Agent S, in fact, might believe that p for different, and unjustified, reasons or, even, deciding against the set of reasons ‘R’ as acceptable within her doxastic system, while still believing that p. The doxastic presupposition implies that to assess whether agent S is justified in believing that p, evaluating the validity of the set of reasons ‘R’ that are available to S is never enough. Instead we should also take into consideration the epistemic performance of agent S, what kind of reasons she uses and in what manner. Agent S can have access to the best reasons for believing that p, and yet it might be that she is not justified in believing that p, if she does not employ those reasons correctly or refuses them as incompatible with her wider doxastic sets of beliefs. Consequently, a doxastic justification is usually defined as a justification in which a non-doxastic justification is coupled with a basing requirement, namely the fact that agent S bases her belief that p on the reasons that propositionally justify it.1 To conclude, an agent, to be doxastically justified in believing that p, should believe that p basing her judgment on the right set of reasons ‘R’ and should rely on a reliable process of belief formation.2 This epistemic distinction between propositional and doxastic justification is extremely important for understanding the value of the modest epistemic perspective on justification I defend. From the epistemic perspective, in fact, it is possible that sometimes a moral agent is justified in holding a belief, even if from an external epistemic perspective, such a belief is not warranted. In order to understand this epistemic tension it is useful to introduce a quite common epistemic distinction between two fundamental concepts (De Paul, 1993; Skorupski, 1999; Wedgwood, 2007): (i) Judgment, that is, the activity that pertains to the epistemic appraisal of the judger. This is a subjective epistemological notion governed by the rational connections among different agents’ internal mental states. Even if subjective, this epistemic activity of producing judgments is ruled by normative criteria  “S’s belief that p at time t is [doxastically] justified (well-founded) iff (i) believing p is justified for S at t; (ii) S believes p on the basis of evidence that supports p,” Feldman (2002: 46). 2  For a compelling analysis of the value of doxastic justification in moral epistemology, see Timmons (1993, 1996) 1

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(for example, being correct or incorrect; meeting rationality constraints; etc.) and therefore epistemic justified beliefs are those beliefs that it is rational to believe. ( ii) Warrant, that is, is a feature of the relation between agent’s judgments and the external world. In this regard, the notion of warrant is more an objective or external criterion that attests the ‘contact-with-reality’ of doxastically justified beliefs. Warrant is a criterion that is independent from the agential perspective and it is the ultimate epistemic criterion for establishing the correctness of our justified beliefs.3 As the debate over coherentism have shown us, it is epistemically almost impossible to definitely close the gap between judgment and warrant, since our knowledge of the world is always mediated and skeptical scenarios cannot be ruled out once for all, but instead can be addressed through an indirect strategy. Against this backdrop, we can observe that even though the doxastic justification is still a justification for believing true a certain proposition p, a modest epistemic account of justification stresses how difficult it is to grant warranted knowledge starting from agents’ limited perspectives. In order to fully evaluate the justifiability of S’s belief about p we have to assess, first, the set of reasons ‘R’ that are available to S to justifiably believe that p and, second, the deliberative performance provided by S in actually assuming p as a valid belief within her doxastic system of beliefs. The doxastic presupposition has a strong impact on the overall evaluation of the epistemic status of agents’ beliefs. Indeed, once it is demonstrated that a non-doxastic standpoint is beyond our reach as epistemic agents, it follows that it is possible for S to be doxastically justified in holding the belief that p, even if, from a non-doxastic perspective, p is not warranted.4 The epistemic gap between justification and warrant can be better explained introducing the famous argument by Edmund Gettier against the definition of knowledge as ‘justified true belief’. This traditional definition of knowledge merges together these two different dimensions of justification, that is, the idea that a belief could be defined as genuine knowledge if and only if an agent is justified in holding this belief (doxastic justification) and such belief is also warranted as true belief (propositional justification). In his “Is Justified True Belief Knowledge?” (1963) Gettier starts from the classical definition of knowledge according to which: Eliza knows that p if and only if: (i) p is true, and (ii) Eliza believes that p is true, and (iii) Eliza is justified in believing that p is true.

 “Epistemic warrant is whatever, when added to truth and belief, makes knowledge. Knowledge is true, epistemically warranted belief,” Markie (2010: 72). 4  “for some P, it is possible for one to know that P even if one’s evidence for P does not necessitate or entail the truth of P,” Adam Leite contribution on “Fallibilism” in Dancy, Setup, Sosa (2010: 370). 3

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Gettier’s goal is to demonstrate that these conditions are conjunctly necessary, but not also sufficient for granting genuine knowledge. Gettier claims that “it is possible for a person to be justified in believing a proposition that is in fact false” (1963: 121). To show this, Gettier introduces counterexamples in which an agent is justified in believing a claim, but she fails to know such a claim, since the set of reasons in support of the belief, although justified, turn out to be false. To illustrate this epistemic possibility, Gettier introduces two examples in which an agent does indeed believe a true belief but she has inferred this belief from a justified false belief. In these examples the justified true belief does not correspond with genuine knowledge, since this belief turns out to be true by sheer luck. A Gettier-type counterexample would assume this form: (i) Eliza wants to know what time it is; (ii) Eliza checks her watch and it tells her that it is noon; (iii) it is actually noon when Eliza looks at her watch. Can we say that Eliza knows that it is noon? It seems that she knows that it is noon from the moment in which she has looked at her watch, given that now she has a true belief (it is noon and Eliza has the belief that it is effectively noon) and this belief is also justified (given that her watch is telling her that it is noon when it is actually noon and usually a watch is a reliable tool for ascertaining what time is it). However, it could be also the case that: (iv) Eliza looks again at the watch later and she discovers that it is stuck, because it still says noon even if at least 2 h have passed by. (v) Eliza checked her watch at noon and her justified belief about the fact that it was noon was correct just out of sheer luck, given that at every other moment of the day her watch would have given her the wrong information. This counterexample is shaped on Gettier’s intuition that having a justified true belief is still not enough to establish knowledge, since it is always possible to build up a counterexample in which our actually true and justified beliefs are not a source for genuine knowledge, for they have been formed through a process that relies on at least a premise that is true just out of luck. Gettier-style examples stress the fact that the epistemic gap between justification and warrant is hardly, if ever, closable. This conclusion works perfectly with the coherentist paradigm defended in the previous chapter. Indeed, we saw that an epistemic account of knowledge that looks at the actual circumstances of justification should accept the fact that epistemic warranty is never provided unquestionably. This means that it is possible that Eliza is justified in believing that p, even if from an external, non-doxastic, perspective the belief p might indeed be false.5

 “a person can be justified, in this sense, in accepting a principle (for certain reasons) even though the principle itself is not justified because, say, there are other factors (which he could not be expected to be aware of) that undermine the justificatory force of the considerations he takes to be reasons for it,” Scanlon (2003: 140). 5

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3.1.2 The Fallibilistic Clause The doxastic presupposition, when evaluated against the backdrop of the nonideal epistemic circumstances of justification, is illustrative of an intrinsic subjective dimension of our epistemic processes of belief formation. This conclusion is indeed realistic and coherent with the phenomenology of our experiences as epistemic agents. A doxastic justification that respects the basing requirement tends to be a reliable procedure for justifying beliefs and producing knowledge starting from hypotheses about the factual and evaluative domains. Nevertheless, we have seen that adequate and reliable procedures of justification almost never provide epistemic warranty as well. Accepting this conclusion means being aware that even idealized justification might not guarantee the truth, as arguments of irreducible skepticism, or Gettier-style counterfactual examples, are always raisable. Under a skeptical scenario it could be the case that one agent is justified in holding a certain belief, since her belief is supported by a sound deliberative route of reasoning, even if this belief turns out to be false. Notice that the fundamental skeptical challenge I have in mind is an epistemic skeptical thesis, rather than an ontological one. The former thesis maintains that even if there are ethical truths, still we cannot know with absolute certainty what they are, given our imperfect epistemic abilities. On the other hand, the ontological skeptical thesis claims that the relevant point is not our ability to establish or not ethical truths, since they do not exist (Feldman, 2002). In my opinion, the skeptical challenge that is relevant is the epistemic one, as it allows to problematize the actual epistemic ability of moral agents to claim the existence of ethical truths. In defending coherentism I claimed that this theory of justification, in contrast with foundationalism, takes the skeptical challenge seriously. I take this aspect of coherentism to be very important, as it makes this theory a more plausible account of our real epistemic processes. Indeed, epistemic skepticism is relevant to the extent that tells us not that our beliefs are false, but that they might be false. If we want to take skepticism seriously, then we ought to add a fallibilist clause to our definition of human knowledge. According to fallibilism, knowledge is compatible with the possibility of error. To understand this, it is important to distinguish between two meanings of ‘knowing’: (i) If Eliza knows that p, then Eliza is not mistaken about p. (ii) If Eliza knows that p, then p cannot be false. Fallibilism accepts (i) and rejects (ii). Indeed, (ii) entails a too high standard, namely the ‘impossibility of error argument’, according to which “to know something requires that it be that sort of thing that you could not be mistaken about” (Feldman, 2002: 125). A fallibilist account of knowledge rejects the Introspective Indistinguishable Argument. This argument claims that it is not possible that the arguments that justify the belief that p when p is true are indistinguishable, from an introspective perspective, from arguments that justify the belief that p when p is false. By contrast, fallibilism maintains that it is possible introspectively to have

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indistinguishable sets of arguments in favor of the belief that p both when p is true and when it is false. Indeed, the fallibilist account of knowledge proves that it could be the case that agent S may not really be justified (from a strictly propositional perspective) in believing that p, despite the fact that such belief is justified given agent S’s current system of reasons and beliefs. This conclusion follows from the fact that fallibilism maintains that the reasons that an agent can hold in her doxastic system might be extremely good, but never definitive and that, therefore, it is possible to have very good reasons and yet hold a false belief. In this regard, the fallibilistic clause stands against the epistemic demanding standpoint according to which knowledge necessary requires certainty or the impossibility of error. Too demanding accounts of knowledge, being incompatible with the actual circumstances of justification, become feeding grounds for skeptical scenarios. Conversely, fallibilistic accounts of knowledge “avoid scepticism by constructing a theory of justification without a guarantee of truth” (Lehrer, 1974: 239). The modest epistemic perspective I am defending embeds within its paradigm the fallibilistic clause. A fallibilist account of knowledge maintains that it is possible for agent S to be justified in knowing that p, even if S’s full body of evidence for p does not necessarily entail that p is true. According to fallibilism, genuine knowledge is compatible with the possibility of error because agents’ epistemic processes for disclosing evidence can never achieve certainty. Consequently, fallibilism holds, the reasons an agent display in her doxastic system of beliefs may possibly be very good, but never warranted as true. This outcome is strictly speaking consistent with the general framework in moral epistemology I am outlining. As a matter of fact, if coherentism provides an account of moral justification that refers just to the justificatory relations that can occur among beliefs, then the fact that the epistemic relation between justification (doxastic) and warrant (propositional justification) is not necessarily guaranteed is a sensible outcome of the procedure of justification itself. To conclude, let me add a few thoughts about the relevance of this analysis for the wider topic of this book. I maintain that a fallibilist account of knowledge, when coupled with a coherentist theory of justification and along with the awareness that it is not possible to reach a full justification without introducing agent-relative reasons, provides an adequate account of the epistemic circumstances of justification for the political domain. Further, a modest epistemic account like the one I am outlining in this chapter is able, much better than other over-demanding epistemological paradigms, to deal with the fact of disagreement. Such a paradigm provides us with good epistemic reasons for assuming that political disagreement must be described as the proper expression of citizens’ freedom, equality and autonomous reasoning, rather than as the outcome of a defective deliberative procedure. By contrast, if one holds more demanding epistemic accounts (for example, a foundational account of justification), then disagreement can never be defined as genuine. Rather it must be described as the outcome of a defective deliberation caused by cognitive or epistemic errors or lack of adequate information by some of the agents involved in the deliberation.

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3.1.3 The Appraisal of Evidence: An Intrinsically Opaque Process The third epistemic circumstance I want to analyze concerns the impossibility that a single agent might actually attain a full disclosure of evidence. When debating complex evidence, it is highly unlikely  – if not impossible  – that any agent can claim a full appraisal of the evidence at stake. Various epistemic arguments have been introduced to show that evidence is ‘too complex’ and our cognitive and epistemic abilities too bounded to reach a non-mediated appraisal of the evidence at stake. For example, it is important to highlight the diachronic and social aspects of our belief-formation processes. Ernest Sosa (2010) claims that there are good epistemic reasons in support of the existence of reasonable disagreement among agents, that is, a genuine disagreement in which agents, although assessing the very same body of evidence with similar cognitive abilities and sharing the informational background, reach irreconcilable conclusions. Among these reasons, Sosa concentrates on the fact that human beings are social agents that ground the reliability of their doxastic systems of beliefs on diachronic epistemic processes. Given our finitude, agents are not able, at any moment, to recall every operative evidential connection within their web of beliefs.6 If we can’t even spot our operative evidence − so much of which lies in the past and is no longer operative except indirectly through retained beliefs − then we cannot disclose it, so as to share it. […] We have reasons (in our case through the mediation of retentive memory) that, acting in concert, across time, have motivated our present beliefs, but we are in no position to detail these reasons fully. (Sosa, 2010: 291)

According to Sosa, the genuine possibility of encountering reasonable forms of disagreement among agents is supported by the fact that agents’ doxastic systems involve beliefs whose evidential chains of justification can hardly be recalled at any given time and, also, being properly communicated to others. Sosa, moreover, stresses that disagreement among agents is caused by the dialogical setting in which agents confront one another. In fact, there might be internal reasons within a doxastic system of an agent that, although epistemically valid for her, become dialogically inefficacious when employed in an intersubjective process of reasons exchange. Looking at the diachronic processes of belief-formation, it appears that our doxastic epistemic deliberation involves personal experiences, information obtained through testimony, inferences and personal intuitions and perceptions that are hardly communicable to others. In this sense, Sosa concludes that some aspects of our doxastic states are properly uncommunicable to others (Sosa, 2010: 296).

 Sosa’s illustration of our limited abilities that prevent us from reaching a full appraisal of evidence becomes even more relevant when one defends a general coherentist account of justification. Indeed, considering a highly complex web of inferential beliefs, it would be implausible to assume that agents might be able, at any given moment, to recall and explain the whole web of inferential assumptions when requested to do so. 6

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Another important characteristic of our epistemic processes of belief-formation is the fact that we employ epistemic norms, both in our individual deliberative processes and in intersubjective dialogical contexts. Alvin Goldman (2010) has introduced the notion of descriptive pluralism, the non-normative thesis that different agents, communities, cultures, etc. endorse different epistemic systems. These systems are composed by different sets of norms, standards and principles that guide our processes for forming beliefs and other doxastic states. Agents tend to regulate their processes of belief-formation and of validity assessment according to ‘customary’ epistemic systems that they happen to support, sometimes even with unawareness (that is, when agents employ some epistemic standards they have drawn implicitly from the culture in which they are embedded). Even assuming an objectivist thesis according to which a correct epistemic system does exist – and therefore rejecting a strong form of relativism, Goldman claims that the existence of a correct epistemic system does not rule out the possibility that agents might be doxastically justified in holding different, incorrect (from an epistemic external standpoint), epistemic systems.7 Given the limits of our epistemic capacities and the strong impact that our social environment has on the epistemic system we tend to rely upon, Goldman maintains that two agents that happen to disagree about which is the most adequate doxastic state to assume in the face of a body of evidence E can both be correct in assuming that their doxastic reaction to E is indeed the correct one. Since no one has access to an external perspective from which assessing the reliability and objectivity of one’s own epistemic system, it results that a first-order justification of an epistemic system (a justification that evaluates the objectivity of this system independently from agents’ beliefs about it) does not fulfill all the evidential work to determine the reasonability of the doxastic attitudes of agents. According to this thesis, the disagreement among agents that employ conflicting epistemic systems might not be a reasonable disagreement from the perspective of first-order justification. In fact, first-order justification might be able to discriminate between conflicting epistemic systems establishing which one of the two is the correct one. However, the very same disagreement can still appear reasonable from the standpoint of second-order justification.8 Attributing epistemic relevance to the ordinary second-order justificatory practice is consistent with the doxastic presupposition, since second-order justifications

 “There is a uniquely correct E-system that governs the objective justifiedness and unjustifiedness of people’s doxastic attitudes. However, people occupy different evidential positions vis--à--vis this system and other candidate E--systems. Hence, the objective justificational status of different people vis-à-vis different E-systems is varied rather than uniform. Some people are objectively justified in believing certain E-norms and E-systems to be correct; others are objectively justified in believing other E-norms and E-systems to be correct,” Goldman (2010: 201). 8  “The actual rightness of an E-system does not determine the reasonability of an agent’s conforming to it. What is critical is the agent’s evidence about its rightness. If an agent conforms her attitude to the prescriptions of a properly chosen E-system, this should be an important—perhaps decisive—element in assessing the attitude’s reasonability, even if the evidence supporting that E-system’s rightness happens to be misleading,” Goldman (2010: 206). 7

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involves reflexive beliefs that agents hold about the likelihood of them being justified in assuming a specific doxastic state with regard to the body of evidence E. Amanda is justified in believing that she is justified in adopting attitude D toward P, whereas Jerome is justified in thinking that he is justified in adopting attitude D* toward P, where D and D* are incompatible. At the first-order level of justification such a difference in attitude implies that at least one of them is unreasonable, but at the second-order level of justification both can be reasonable−that is, iteratively justified. (Goldman, 2010: 204)

In this section I introduced a technical analysis to underscore the diachronic and social aspects of our belief-formation processes and to illustrate why there is no way to ultimately establish which agent is actually more justified than others – at the first-order epistemic level  – in supporting the right system of epistemic norms. These conclusions are helpful for clearly spelling out the modest epistemic paradigm that I am cashing out in this chapter. A further feature of this paradigm describes our epistemic processes for the appraisal of evidence, and our second-­ order judgments about the reliability of out epistemic practices are intrinsically opaque (Feldman, 2006; Peter, 2013b: 608–613), given our bounded rationality qua human beings. This modest account, accepting the intrinsic limits of our epistemic abilities, provides a plausible point of view from which to address the fact of disagreement. In fact, this view provides a plausible account of why genuine disagreement arises between agents that evaluate the same piece of evidence E while employing different epistemic systems second-orderly justified. This conclusion is significant for the general project of granting legitimacy to political decisions and principles in the face of pervasive disagreement. Indeed, if we have good epistemic reasons to assume that there are indeed genuine forms of disagreement, this is relevant for a general theory of political justification that ought to respect the agential autonomy of all the agents involved.

3.1.4 Objectivity in Practical Reasoning According to a modest epistemic account, practical knowledge is partially constituted by epistemic processes that are intrinsically subject-ive. Subject-ive is a term introduced by Peter Railton (1995: 263) in order “to express the notion of that which is essential connected with the existence or experience of subjects, i.e., beings possessing minds and point of view, being capable of forming thoughts and intentions.” Against this backdrop, it seems reasonable to raise concerns about whether objectivity can ever be reached in practical reasoning. Indeed, it appears that the notion of objectivity available within this modest epistemic paradigm is partly mind-­ dependent, as the justification for believing something derives from the mutual explanatory relations of epistemic support among different beliefs that are held by agents. However, I shall argue that this assumption about our knowledge processes being intrinsically subject-ive – as they involve doxastic states – does not imply that

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these processes cannot entail objectivity.9 It follows that in my attempt to defend a general epistemic paradigm to support a liberal account of political legitimacy, I ought to clarify which form of objectivity is reachable under nonideal circumstances. Since, as we have seen, the possibility of being wrong is always an option at stake, it follows that we need to look for a notion of objectivity that somehow reflects and incorporates the fallibilist clause. As I have already claimed illustrating coherentism, this inquiry deals with skeptical scenarios that question the epistemic ability of agents to achieve any objective agent-relative knowledge, rather than relating to ontological debates over the existence of moral truths and facts. Along these lines, a significant distinction can be drawn between two different theses regarding the ascription of objectivity: (a) an ontological thesis according to which there are objects or real properties out there to which ethical truths correspond; (b) an ordinary practice of morality objectivity that refutes the ontological disputes and instead contends “that every moral sentence has a determinate status, true or false, and this status is applicable to all interlocutors. Moral disputes, in principle, can be settled” (Dorsey, 2006: 512). Within the modest epistemic paradigm that I am outlining the meaning (b) of objectivity is the one that assumes priority. It is worth noting that defending this conclusion does not imply the refusal of the ontological thesis as irrelevant or misleading. Rather, a further distinction between a demanding (i) and modest (ii) notions of practical objectivity can be introduced: (i) a moral principle can be objective as far as it implies an ontological assumption according to which there are moral objects or properties to which moral truths correspond; (ii) a moral principle can also be defined as objective inasmuch as the evidence in its favor has been obtained through a deliberative process that respects some correctness constraints that are determined in the light of the ordinary practice of morality. According to (i), the alleged objectivity of the moral and political discourses directly derives from the expectation of moral realism being true. By contrast, the modest version of objectivity (ii) looks at the epistemic intersubjective practice of producing evidence and establishing principles through public justificatory processes. These two accounts must be distinguished, but they are not incompatible. Indeed, they focus their attention on different aspects of what makes a moral proposition ‘objective’ and therefore we can have a theory of justification in ethics that meets  “Beliefs are fundamentally subject-ive, given their jobs, but it must be kept in mind that the sense of ‘subject-ive’ is technical and stipulative. It is opposed not to ‘objective’, but to ‘object-ive’, that is, having to do essentially with nonsubject-ive entities – entities that lack a mind or point of view, entities that are not a locus of experience or intention. Knowledge, for example, is by its nature subject-ive since it involves belief. But though it therefore cannot be object-ive, it might well be objective”, Railton (1995: 270). 9

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both these objectivity requirements.10 However, what is relevant for me is to prove that engaging in metaphysical disputes concerning the ontological status of moral facts is not necessary for granting the objectivity of the moral discourse – at least in the modest sense. In a sense, the modest account of objectivity underdetermines the choice between competing ontological theses with regard to the status of moral facts. This conclusion is indeed compatible with the goal of defending a general epistemic paradigm that can sustain the political liberalism enterprise thanks to adequate epistemological investigations, while, at the same time, not taking a stance about ontological disputes. Consistently with the general epistemic paradigm I am defending in this work, I believe that the modest account of objectivity (ii) is actually a better criterion for assessing political decisions publicly selected and justified. First of all, this modest account of objectivity is still a robust account, as it establishes that moral and political propositions can be described as true or false and that evaluative disputes, in principles, can be settled. Second, this account of objectivity is coherent with the phenomenology of our ordinary moral practice. Indeed, according to this modest account, the objectivity of moral and political judgments stems from the normativity attached to the publicly accepted criteria of epistemic correctness that are employed in the assessment of public practices of deliberation. It follows that the ‘objective status’ of moral and political principles hinges upon the fact that we, as moral agents, evaluate our moral commitments as objective and justified thanks to the reference to a correct-apt deliberative procedure. This kind of objectivity stems from the normative stance, shared by agents, that there is a right answer and that the normativity attached to the ‘rightness’ of this answer rests on the correctness-­ aptness deliberative procedure we take part in as moral agents.11 Indeed, moral agents, starting from their agent-relative perspective, namely appealing to their moral judgments and doxastically justified beliefs, try to achieve an extremely relevant goal: an agreement on some general, justified and objective principles of justice. To conclude, the objectivity of practical knowledge can be granted thanks to the “durable satisfaction of the discourse’s internal disciplinary constraints” (Wright, 1995: 219), such as correctness criteria intrinsic to the moral and political evaluative discourse itself.12  As it is imaginable, there is a never-ending philosophical debate that regards the complex epistemic relationship between these two criteria for granting objectivity to the moral discourse. See, among others, Brink (1989); Dworkin (1996); Enoch (2010b); Railton (1995); Wiggins (1995); Wright (1995). 11  “These contents have correctness conditions that are commonsensically seen as objective in the sense that the content of one’s beliefs is not simply a matter of what one takes it to be − it is not a matter of idiosyncratic will, free stipulation, or spontaneous creation. […] The puzzle is how they might do this: how subjects might, by doing what they do, place themselves within a normative framework that sustains a distinction between what is correct and what is done,” Railton (1995: 275–276, emphasis in original). 12  I believe that both Railton (1995) and Wright (1995) support a similar notion of the evaluative practice of morality as intrinsically normative. Railton, however, claims that part of the normativity of moral discourse stems from a realist account of moral facts as supervenient on non-moral ones. 10

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This modest, and yet robust, account of objectivity highlights the normative aspects of the intersubjective processes in which agents exchange reasons in order to find a collective agreement over political decisions. Such a practice, through the intersubjective confrontation, aims at producing evaluative judgments and establishing political principles that are publicly accepted as legitimated by the majority of the constituency. In this regard, the decision-making procedures are laid out respecting normative constraints that play a relevant role in granting the normativity of the overall processes (see Forst, 2012; Habermas, 1996; Maffettone, 2010). An interesting parallelism can be drawn between the productive correct-apt activity of the ordinary practice for determining publicly justified political decisions and the explanatory activity for justifying the epistemic reliability of observational beliefs. In fact, the explanatory activity that attains to descriptive beliefs involves a reference to an intrinsic normativity related to the correctness-aptness epistemic activity for justifying such evidence as adequate. As I claimed defending coherentism from the no-contact-with-reality-objection, even though the explanatory evidence relies upon the epistemic correctness relative to the doxastic system of beliefs that the believer holds, yet the correctness criteria for assessing such evidence can be defined as objective. It follows that the normativity of such an evaluative process is drawn on the consistency of the relation of mutual supports among beliefs. Specifically, second-order beliefs connect beliefs at different levels of generality and provide sound reasons for considering our first-order beliefs as reliable. As we saw, second-order beliefs include beliefs about different issues: as, for example, beliefs about ourselves as moral agents, beliefs about scientific theories, beliefs about our belief-formation mechanisms, and so on. Second-order beliefs provide explanatory reasons in favor of the acceptance of first-order beliefs as epistemically correct. Not surprisingly, the justification of second-order beliefs themselves depends upon evidential connections with other beliefs of the coherent system (see Blanshard, 1939; Bonjour, 1976, 1978, 1985; Brink, 1989; Feldman, 2002). As we saw with the method of RE, this pattern of reasoning that employs as input of the inferential procedures of justification some presumably correct-apt fixed points can be defended as an adequate epistemic procedure. My goal here is to argue that this account of objectivity resting on the overall coherentist paradigm is suited for practical deliberation as well. From the epistemic point of view, this model perfectly matches a modest perspective on our abilities as epistemic agents and about a notion of objectivity that incorporates the fallibilistic clause. Now, to conclude this first section I want to connect these themes with the very general and vague analysis of the epistemic circumstances provided by Rawls in PL.

By contrast, Wright maintains that the validity of the moral discourse is established through a discourse-invariant analysis that attests the ‘superassertibility’ of moral truths. The fact that this modest interpretation of objectivity is supposedly compatible both with a realist account (Railton) and a non-realist one (Wright) backs up my proposal for establishing criteria for ascribing objectivity that are undetermined with regard to ontological theses.

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3.1.5 The Burdens of Judgment Rawls, in PL, briefly hints at an analysis of the epistemic circumstances when he introduces the notion of the burdens of judgment. These are factors that explain, epistemically, why individuals living in a not oppressive society, enjoying freedom of conscience, end up maintaining different and incompatible political conceptions. According to Rawls the fact of pluralism can be partly explained by appealing to the burdens of judgment, features of our intersubjective reasoning that express why reasonable disagreement arises among agents deliberating together. Rawls does not engage more precisely with an epistemic analysis of the circumstances of deliberation; however he reaches a similar conclusion to mine, that is, the existence of genuine disagreement even among citizens who reason correctly. Rawls, in a sense, attempts to ‘translate’ in epistemically not committed language, therefore publicly acceptable to every member of the demos, the more technical epistemic analysis that I am outlining in this chapter. Keeping on the surface, he assumes that illustrating the burdens of judgment is sufficient for making sense of the existence of genuine disagreement even among reasonable agents. The burdens of judgment are the following: (a) The evidence—empirical and scientific—bearing on the case is conflicting and complex, and thus hard to assess and evaluate. (b) Even where we agree fully about the kinds of considerations that are relevant, we may disagree about their weight, and so arrive at different judgments. (c) To some extent all our concepts, and not only moral and political concepts are vague and subject to hard cases; and this indeterminacy means that we must rely on judgment and interpretation (arid on judgments about interpretations) within some range (nor sharply specifiable) where reasonable persons may differ. (d) To some extent (how great we cannot tell) the way we assess evidence and weigh moral and political values is shaped by our total experience, our whole course of life up to now; and our total experiences must always differ. Thus, in a modern society with its numerous offices and positions, its various divisions of labor, its many social groups and their ethnic variety, citizens’ total experiences are disparate enough for their judgments to diverge, at least to some degree, on many if not most cases of any significant complexity. (e) Often there are different kinds of normative considerations of different force on both sides of an issue and it is difficult to make an overall assessment. (f) Finally, […], any system of social institutions is limited in the values it can admit so that some selection must be made from the full range of moral and political values that might be realized. This is because any system of institutions has, as it were, a limited social space. In being forced to select among cherished values, or when we hold to several and must restrict each in view of the requirements of the others, we face great difficulties in setting priorities and making adjustments. Many hard decisions may seem to have no clear answer.

(PL: 56–57) It is interesting to note that these burdens of judgment are perfectly consistent with the analysis of the epistemic circumstances that I have been illustrating in this chapter. The burdens stress the intrinsic complexity and opacity of evidence (a); the different evidential weight attributed to different pieces of evidence, since we employ

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diverse epistemic systems (b); the vagueness of concepts and the dialogical inefficacy of some forms of verbal judgment (c); diachronic and social aspects that impact the processes of belief-formation (d); the difficulty to reach a definite evaluation of the body of evidence given our fallibility as epistemic agents and the partiality of our doxastic perspectives (e and f). Within Rawls’s account of political liberalism, the acceptance of the burdens of judgment is relevant for two orders of reason. First, it helps explaining why genuine disagreement among reasonable citizens is a stable feature of liberal societies. It follows that an adequate theory of liberal legitimacy should not look for a strategy to fully overcoming of disagreement, since this goal is incompatible with the actual epistemic circumstances and, even more profoundly, a public attempt to resolve disagreement once for all would run afoul of the ideal of fully respecting the autonomy of citizens. Second, once the burdens of judgment are taken as real factors that impact our collective deliberations, any citizen who attempts to impose her own private perspective on others can be seen as unreasonable, since it pushes for an illegitimate solution to the fact of pluralism. The three epistemic aspects I have just detailed (that is, the doxastic presupposition; the fallibilistic clause; the mediated appraisal of opaque evidence) provide an adequate account of the nonideal circumstances of justice around which I shall propose to build a plausible paradigm of political legitimacy. And one of my theses, pace Rawls, is that we cannot do away with an adequate analysis of these circumstances when we try to defend a specific theory of political justification. A proper analysis of the epistemic framework we are all embedded in is not only important from a descriptive perspective. Rather, in the next two sections of this chapter I will contend that from these circumstances we can actually draw some normative conclusions as well. For now, let me just briefly recall the conclusions reached up to now and connect them to the political liberalism paradigm. From a fallibilistic account of practical knowledge derives a right concern about the possibility that citizens might reach an agreement in identifying standards of rightness partially independent of both the decision-making procedures and the participants’ beliefs. Moreover, there are good epistemic and normative reasons for arguing against the possibility that a political conception or principle can be fully justified if the justificatory procedure lacks any provision of agent-relative reasons. Since a non-doxastic perspective is out of reach in the social and political domain (given the doxastic presupposition and the limits to the full appraisal of evidence we share as fallible knowers), then it would be disrespectful toward the members of the constituency to not take into consideration their perspectives when they are involved in the public processes for determining and justifying political decisions. To conclude, a political conception, to be fully justified, should prove its consistency with the different doxastic systems of beliefs that reasonable members of the constituency held privately. This conclusion is coherent with Rawls’s definition of the overlapping consensus as the justificatory stage in which the political module is in fact proved compatible with the comprehensive doctrines supported privately by reasonable citizens. According to Rawls, reaching an overlapping consensus is the only way for granting full justification to the political conception, while, at the same time, respecting the

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personal perspective (and the agential status) of reasonable citizens who genuinely disagree with each other.

3.2 Political Epistemology The analysis of the actual epistemic circumstances of justification assumes more relevance when analyzed through the lens of the contemporary debate about the epistemology of disagreement. In fact, many authors in the last decade have been investigating the epistemic significance of disagreement, to wit, assessing whether the fact that I happen to disagree with other agents provides me with reasons to reassess my trust in the reliability of my judgments about the debated evidence. The epistemology of disagreement literature attempts to answer many related questions: establishing whether genuine disagreement is an epistemic reasonable outcome of collective reasoning; assessing whether agents who discuss upon the same piece of evidence and who share more or less the same cognitive abilities and informational set can be defined as epistemic peers; reasoning about what the most adequate reaction is to the fact that one disagrees with an epistemic peer. Now, when specifically looking at the theories of knowledge applied to the political domain, we are engaging in political epistemology (Hannon & de Ridder, 2021). The second part of this chapter will investigate some fundamental issues of political epistemology, that is, how to deal with entrenched disagreement when engaged in justificatory processes over political matters; what it means to have a valid claim of epistemic authority in collective settings; the epistemic value that is inherent to democratic procedures; the epistemic dimension of the civic virtue of reasonableness.

3.2.1 Reasonable Disagreement in the Political Domain I concluded the previous section claiming that we have good epistemic reasons to maintain that genuine disagreement among reasonable agents is indeed a plausible outcome of our intersubjective deliberative processes. I hope to have shown that a technical analysis of the epistemic notion of disagreement is extremely relevant for the overall project of this book, as democratic procedures of decision-making ought to produce legitimate political decisions starting from highly conflictual contexts in which entrenched disagreement among agents is the paradigmatic starting point. We can define reasonable disagreement as a form of disagreement in which two agents, Eliza and George, assessing the very same piece of evidence E, reach two incompatible doxastic states: Eliza believes that p and George believe that ~p. This disagreement is indeed reasonable when both Eliza and George are doxastically justified in believing what they believe. Once we have established the genuine possibility of reasonable disagreement, it remains to clarify which are the most adequate public procedures for the ascription of epistemic authority. Having epistemic

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authority means that what we claim to be true provides others with sufficient reasons for believing the same themselves. An engineer who produces a valid calculus for building a structurally solid bridge can claim epistemic authority with regard to the construction crew that ought to follow her calculus to actually build the bridge correctly. As we shall see, ascribing epistemic authority to some specific agents in the factual domain, through the appeal to shared criteria, is less contested than doing the same for the evaluative domain. For example, let’s reason about Eliza and George who have conflicting standpoints about the legitimacy of a law that extends marriage rights to same-sex couples. Do we have any public, not contested, procedure to establish whether one of the two might be ascribed with warranted epistemic authority over this matter? The answer to this question touches upon one of the most important themes of this chapter, namely, the thesis according to which democratic decisions are legitimate to the extent that all the individuals subjected to them can – allegedly – be described as authors of such decisions. From an epistemic perspective this conclusion is supported by the fact that evaluative conflicts cannot be publicly resolved by appealing to an external point of view – whose authority is not contested by the agents involved in the conflict – to establish which agent has more epistemic authority over the contested matter. As with have seen with Alvin Goldman, even though it might be true that from a first-order perspective one of two parties is indeed correct in maintaining p instead of ~p, it is always the case that at the level of second-order justification both these beliefs might be doxastically reasonable to hold. According to this argument, the investigation of the actual epistemic circumstances of deliberation among fallible agents that are strongly in disagreement over evaluative matters show us that very seldom can we resolve this disagreement appealing to an external epistemic authority. In fact, when dealing with contested evaluative matters, the ascription of the status of epistemic authority is almost never publicly justifiable through arguments that all agents involved can accept. As it appears, epistemic authorities in the evaluative domain are usually established through partisan forms of reasoning, thus precluding to these very same authorities to be recognized as authorities by all the individuals included in the contested deliberation. And since liberal legitimacy is strictly connected with the normative commitment to respect the reflexive agency of citizens, this is conducive to claim that in democratic settings reasonable forms of disagreement are almost never solvable appealing to an external epistemic authority that all the parties involved acknowledge as a legitimate authority. Consequently, the only procedure for managing the disagreement, while respecting the agential autonomy of agents and in an attempt to reach legitimate collective solutions that resolve the stalemate, is to defend democratic processes of decision-making and conflict management. Now, I want to investigate what this conclusion implies for a mainstream, procedural account of democratic legitimacy. Indeed, democratic legitimacy is often grounded in proceduralist terms, referring to the ideal of political equality as a noninstrumental value that should be mirrored by fair procedures of decision-­making. Broadly speaking, a proceduralist view holds that democratic legitimacy does not depend on external criteria of assessment of the quality of the outcomes, but rather

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on the principles that govern procedures of collective decision making.13 More precisely, a proceduralist view claims that democratic processes are legitimate in virtue of the equal consideration that should be granted to the interests and preferences of all members of the constituency by means of suitable decision procedures.14 Not all citizens’ opinions can actually be implemented collectively, but at least each legitimate claim by citizens should be given a fair hearing and an equal opportunity of impacting decision-making processes (Beitz, 1989; Christiano, 2008; Kolodny, 2014). According to a normative oriented reading of proceduralism, we can claim that there are values that are inherently related to procedures, namely, that some normative democratic commitments are intrinsically realized in procedures, rather than promoted through them (Ceva, 2016; Ottonelli, 2012). In this section I maintain that the normative commitments embedded in a non-­ minimalist account of procedural legitimacy assume more relevance when these commitments are paired with the ideal of co-authorship. According to this ideal, democratic decisions are legitimate to the extent that all the individuals subjected to them can – allegedly – be described as authors of such decisions. In a functioning democratic system, political equality, as a non-instrumental value, should be mirrored in political institutions that fairly distribute the power of impacting political choices. In order to establish a legitimate system for making publicly justified political decisions, democratic procedures should, first, grant to everybody the default position of equal respect, simply respecting their outward dignity as agents. Furthermore, a second aspect of non-minimalist accounts of proceduralism I want to underscore is that a well-suited democratic decision-making procedure should respect the agency of every member of the constituency and ensure to everybody the possibility of impacting public choices. The criterion of equal consideration at work here is responsiveness: outcomes of the democratic decision-making process should address the demands of participants involved in decision-making either by meeting their valid claims, or by offering a justification for rejecting them (Estlund, 2008; Mackie, 2011). In either case, procedures are responsive when they treat  By contrast, recent instrumental conceptions of democratic legitimacy have claimed that to be legitimate a democratic decision-making process needs to promote substantive values and pursue the common good (Van Parijs, 1998). According to this perspective, the legitimacy of a decision-­ making process depends exclusively upon the substantive quality of its outcomes, thus it does not necessarily require political equality. Within this framework, political disenfranchisement might be justifiable if such unfair treatment would ensure substantively better choices (Arneson, 1993). As a consequence, instrumental conceptions of legitimacy could justify a decision-making process in which citizens are treated as mere beneficiaries of policies rather than as political agents. As will become clear in what it follows in the chapter, this perspective is quite the opposite to the one I defend here. 14  It is important to distinguish between: (i) minimalist proceduralist accounts (Dahl, 1959; Riker, 1982), according to which the legitimacy of democracy is grounded in the very existence of a scheme of rules and procedures of consent formation under conditions of fairness, where no reference is made to the values promoted by those procedures; (ii) normatively oriented versions of proceduralism (Ceva, 2016; Christiano, 2008; Estlund, 2008; Urbinati & Saffon, 2013; Waldron, 1999) according to which democracy incorporates substantive political values that democratic procedures instantiate. 13

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participants as agents, not patients of political decisions. The co-authorship paradigm satisfies these normative commitments grounding democratic authority in the viability of decision-making processes that involve each member of the constituency on an equal footing, respecting their agential autonomy and avoiding patronizing forms of epistemic deference. This means, firstly, that the practice of publicly exchanging reasons is legitimate if and only if citizens are allowed to exercise their political agency, voicing their requests with a solid expectation to be properly and fairly heard, politicizing specific interests and ideals, and challenging the views of fellow citizens.15 Secondly, and this is the heart of my proposal in this chapter, I maintain that the ideal of co-authorship requires that each citizen is treated and respected as a putative epistemic authority. This normative framework refers to two fundamental dimensions of the notion of political agency in democratic contexts: the first is the proceduralist tenet that equality is a non-instrumental value according to which every member of the constituency should be acknowledged as a political actor and any voice, in the political arena, should be given equal weight. The second hinges on the acknowledgment that reasonable disagreement is a likely outcome of collective-decision settings and that, therefore, reasonable citizens, in accepting the limits of their epistemic abilities, should be ready to share political and epistemic authority with their fellow citizens. I shall now demonstrate that this second aspect of the characterization of democratic political agency can be grounded in the analysis of the epistemic circumstances of politics I have outlined previously. This thematical link between the ideal of co-authorship and the request of ascribing the status of putative epistemic authority to fellow citizens has been mostly overlooked by non-minimalist accounts of proceduralism (an exception being Peter, 2008, 2013a, b), whereas I take it to be a fundamental aspect of a procedural account of democratic legitimacy that proves able to draw normative conclusions from an attentive analysis of the actual epistemic circumstances in which we are embedded. In the social epistemology literature, a similar theoretical insight about the epistemic relational symmetry between agents who reasonably disagree is expressed by the notion of epistemic peerhood. Basically, two agents can be defined as epistemic peers16 if they are close to equal in both their evidential possession (that is, they have access to the same body of evidence and when involved in deliberative exchanges they do not conceal any relevant information from their peers) and evidential processing abilities (that is, how well they can handle the body of evidence in forming a relevant belief). Being equal in evidential processing means sharing

 Famously Jeremy Waldron (1999) urged that neutrality per se does not grant substantive fairness. As long as neutrality among citizens is concerned, tossing a coin and majority-rule solutions would both be procedurally valid. Normative oriented accounts of proceduralism reply to this criticism stressing that decision-making processes, in respecting the responsiveness ideal, should also reflect the commitment of giving equal weight to each person’s opinion, a feature lacking in random selection. 16  “agents who are similarly or equally well-qualified to opine upon matters in a given domain,” Simpson (2013: 563). 15

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similar epistemic faculties (that is, sensory faculties, memory, intelligence, etc.) and epistemic virtues (attentiveness, intellectual honesty, open-mindedness, etc.).17 Against this backdrop, we can argue that two agents who disagree, but who mutually recognize each other as epistemic peers, are able to acknowledge that, for some issues, it is extremely difficult to establish who has the epistemic authority to make claims which give others sufficient reasons for believing. As it should be clear by now, this epistemic stalemate, in which an appeal to an external, publicly acknowledged epistemic authority, is almost never an available option to resolve the disagreement, is a pretty good depiction of intersubjective settings in which evaluative matters are debated. When dealing with circumstances of our daily lives where we are debating over the correct interpretation of factual evidence and beliefs, it is often possible to find an agreement about who are the epistemic authorities on determinate matters (for example, a doctor for establishing how to treat a patient; an engineer for building a non-collapsing bridge; a lawyer in a courtroom). On the contrary, when dealing with disagreements about ethics, politics, conceptions of the good life, and so on, it is extremely difficult to posit that we can resolve our disagreement by referring to the opinion of an expert. These are fields in which disagreement is pervasive and in which the ability to deliberate with each other becomes salient, as the epistemic authority does not stem from major expertise or a specific ability, rather it is established through public confrontation between disagreeing agents. This conclusion is partly dependent upon the epistemic circumstances that I described in the previous section. Indeed, when an entrenched disagreement cannot be resolved thanks to the appeal to an expert whom opinion counts as a third-personal epistemic authority, then the deliberation is tied down to the second-personal perspectives and to the assessment of the epistemic performances provided by deliberating agents. Now, one may wonder why this epistemic analysis can be of any relevance for the messy contexts of real-world democracies, where fallible citizens certainly are far from meeting the epistemic standards related to the notion of epistemic peers. My reply is that this this debate can prove useful for drawing some important normative conclusions regarding the symmetrical standing of citizens involved in intersubjective processes for deliberating upon collective matters. Specifically, I believe that it is worth investigating the epistemic significance of peer disagreement for a number of reasons. First, even if there are no real-world applications, this analysis can help us isolate the epistemic significance of disagreement itself. Second, we are dealing in this work with real-world cases of disagreement such that, while it is unlikely that the parties will ever be epistemic peers, it is unclear which party is in

 According to Gelfert (2011: 513) the mutual recognition of peerhood very often partly depends upon “social markers of similarity”. Along these lines, it then possible to establish what are the features that are employed in assessing the level of proximity of peers between each other. According to Wald (2009), a close peer is somebody who assesses the body of evidence E in a manner similar to mine and, moreover, close peers share a comparable good track record of forming true beliefs. A distant peer is somebody who meets just one of the two criteria, whereas a remote peer is somebody who fails to meet either. 17

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a better epistemic position to claim epistemic authority. We can therefore develop an argument according to which these real-world cases of disagreement plausibly have the same epistemic significance as peer disagreement even though, strictly speaking, the criteria of epistemic peerhood are not met. Third, following from the previous point, I maintain that this analysis is useful for shedding lights over the normative consequences that we can draw from the ascription of epistemic symmetry to agents caught up in entrenched conflicts over evaluative matters. The point I want to make is that a normative requirement to ascribe the status of putative epistemic authority to every member of the constituency is inherent to democratic settings and ought to be put on the foreground. This does not certainly correspond to the more demanding request of assuming the epistemic parity of citizens, rather it is a request that rests on the ideal of co-authorship that I claim underlies non-minimalist accounts of procedural legitimacy. In the remaining sections of this chapter my goal is to clearly defend these conclusions and relate them with an analysis of the epistemic dimension of the virtue of reasonableness.

3.2.2 Bite-The-Bullet or Stick-To-My-Own-Guns There is a wide debate, within the epistemology of disagreement literature (Christensen & Lackey, 2013; Elga, 2007, 2010; Feldman & Warfield, 2010; Gutting, 1982; Haddock et al., 2010; Jønch-Clausen & Kappel, 2015; Kelly, 2005, 2010), regarding which epistemic strategies are available to agents for intersubjectively deal with reasonable disagreement. The debate over the epistemic significance of reasonable disagreement investigates whether the fact that I happen to disagree with an epistemic peer regarding evidence E provides me with sound epistemic reasons to revise the level of certainty I have toward my doxastic states concerning E. In the literature, two strategies have been mostly debated, the conciliatory view and the steadfast view (see Bistagnino, 2011; Matheson, 2018). According to the Conciliatory View of peer disagreement, the fact that Eliza disagrees with an epistemic peer calls for her to ‘bite-the-bullet’ and at least reduce a little her confidence in the belief she has about evidence E, since she is now facing defeat (the peer’s opposing belief about E) of her belief. This implies that Eliza has good reasons to make at least some doxastic conciliation between her conclusion about the appraisal of evidence E and her epistemic peer’s.18 The most prominent Conciliatory View of peer disagreement is the Equal Weight View (Christensen, 2007; Elga, 2007; Feldman, 2006; Matheson, 2015). According to the Equal Weight View, my opinion toward E and my peer’s opinion should be granted equal epistemic weight (that is, George’s reasons in favor of ~p are as strong as Eliza’s reasons for p). I cannot claim more evidential force for my beliefs when I am facing peer

 “I should change my degree of confidence significantly toward that of my friend (and, similarly, she should change hers toward mine),” Christensen (2007: 189). 18

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disagreement. The Equal Weight View claims that both parties should ‘split the difference’ and meet in the middle (Gelfert, 2011: 508). Hence, if Eliza believes that p and George believes that ~p, being in disagreement with one another calls for both to suspend judgment regarding p. If both parties follow the prescription of splitting the difference, the disagreement disappears, since both peers have conciliated on the middle ground. Another conciliatory view is defended by Thomas Kelly et  al. (2010). The Total Evidence View claims, in contrast with the Equal Weight View, that we should retain evidential force for the first-order evidence we have, notwithstanding the fact of disagreeing with a peer. Kelly holds that what Eliza is justified in believing is determined by her total evidence, the combination of her first-order evidence and the higher-order evidence that counts in the epistemic relevance of disagreeing with a peer.19 This view is in a sense more moderate that the Equal Weight View, since it does not recommend splitting the difference in every instance of peer disagreement. In our doxastic response to peer disagreement, we ought to give some weight to peers’ opinions, but not necessarily the same epistemic weight. Finally, Jennifer Lackey (2010a, b) defends the Justificationist View, according to which the epistemic impact of peer disagreement depends on how much antecedent justification Eliza has for believing that p. In cases where Eliza does not have strong antecedent justification for believing that p, the right doxastic reaction to peer disagreement is to split the difference as the Equal Weight View claims. Conversely, in cases where Eliza is indeed highly justified in believing that p, the fact of peer disagreement does not impose much doxastic reaction on her part, since Eliza is justified in not granting much epistemic weight to her peers’ opinions. In contrast to the Conciliatory View, other authors have defended the Steadfast View. According to this view, the fact that Eliza disagrees with an epistemic peer does not require her to make any doxastic revisions regarding her belief that p. In this sense, the Steadfast View denies that peer disagreement has any fundamental epistemic significance from the doxastic perspective of agents. Thomas Kelly (2005) has maintained that what Eliza is justified in believing depends entirely on her first-order evidence, since her evidence regarding p is allegedly as evidentially as good as her peers, therefore different pieces of higher-evidence regarding the evidence for the belief that p sort of counter-balance one another. The Steadfast View claims that agents are justified in ‘sticking to their own guns’ and not revise their doxastic standpoint after having discovered a peer disagreement. A second argument in support of the Steadfast View relies upon the ineliminable aspects of the first-person standpoint. Many authors have maintained that we have good epistemic reasons to self-trust our own perspective, since it is indeed ours (Enoch, 2010a; Foley, 2011; Wedgwood, 2007). According to this view, our doxastic standpoint has evidential weight, in the sense that we cannot hold our beliefs on the basis of other agents’ evidence and epistemic faculties. Since it is rational to have  Consistently with the discussion of first-order and second-order beliefs that I introduced in the previous chapter while illustrating coherentism, first-order evidence regarding the belief that p is evidence directly pertaining to that belief, whereas higher-order evidence regarding the belief that p is evidence about the evidence pertaining to the belief that p. 19

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self-trust in my own faculties and evidential processes, finding myself in disagreement with a peer does not require any doxastic revision of my epistemic standpoint. A similar point is developed by Peter van Inwagen (1996) when he stresses the epistemic relevance of private evidence in supporting evidential reasoning. My private, often uncommunicable, evidence in support of the belief that p provides me with good reasons to stick with my own doxastic attitude toward p. Naturally, this appeal to private evidence reinforces the case for disagreement, since both parties tend to believe that their private evidence is correct, while the other party’s is at least partly misleading evidence. Unsurprisingly, this debate is connected with the wider one concerning the epistemic nature of evidence. According to the Uniqueness Thesis (Feldman, 2007) a certain body of evidence E justifies – and epistemically warrants – the correctness of a singular doxastic state with regard to E. Conversely, the Permissiveness Thesis (Christensen, 2009; Rosen, 2001; White, 2005) claims that the overall body of evidence E can justify more than one doxastic state with regard to E. Naturally, these two theses reach very different conclusions regarding epistemic relativism and the possibility of having genuine disagreement among epistemic agents. In fact, if the overall body of evidence E can justify more than one doxastic state with regard to E, as maintained by the permissiveness thesis, then the possibility for peer disagreement becomes even more full of significance. For example, Marc Moffett (2007) has underscored that if the correct doxastic response to the body of evidence E is undetermined by the permissiveness of the nature of E, then we can have genuine peer disagreement in which no peers have made any mistakes. What it is relevant for me in this chapter is drawing some practical conclusions from this technical debate. At first glance, the important conclusion is that neither of these strategies acknowledges a genuine significance for reasonable disagreement. On the one hand, the Conciliatory View reduces disagreement to a ‘solvable’ problem, since it describes peers as willing to split the difference and find a middle ground. This view, correctly, highlights the social aspects of the belief formation processes, but probably expects too much from the intersubjective dynamics, assuming that all epistemic peers would be willing to split the difference between their doxastic perspective and others. On the other hand, the Steadfast View describes belief formation processes as unilateral processes in which the fact that I disagree with someone I take to be an epistemic peer has no real impact on my doxastic justification. In this sense, the steadfast view is more consistent with moral phenomenology, acknowledging how difficult it is to motivate agents to find a middle ground when they strongly disagree with a peer. However, the Steadfast View completely overlooks the social aspects of intersubjective confrontation and reasoning, since it does not attach any relevant epistemic significance to the fact that someone I take to be a peer of mine disagrees with me. Fabienne Peter (2013a, b) has developed an interesting analysis of this debate in order to draw some useful conclusions to apply in the management of disagreement in democratic contexts. Although the peer disagreement literature is relevant for understanding the epistemic significance of disagreement among agents that are in a symmetrical relation, Peter criticizes the overly idealized definition of peerhood and the assumption, shared by various authors, that in processing evidence E “all the

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relevant evidence has been revealed and is available to all sides of the disagreement” (Peter, 2013b: 608). According to Peter, what it is misleading with the Conciliatory and Steadfast Views is that they both characterize reasonable disagreement starting from epistemic circumstances in which epistemic peers have a direct – and equal – access to the full body of evidence. Accepting the analysis of the actual epistemic circumstances that I illustrated in the previous section means approaching the debate over epistemic peerhood from a different angle. My point here is to demonstrate that the actual circumstances of deliberative settings in deeply conflicting democratic contexts provides citizens with normative reasons for acknowledging one another through a symmetrical stance, and yet this requirement does not derive its force from the abstractions that drive the epistemology of disagreement research. If, following Peter, we assume that our doxastic access to the evidence is always mediated and partly opaque,20 then we can define an epistemic peer as someone who we take to be equally likely to make a mistake (Elga, 2007; Peter, 2013a, b). This is a weaker definition, since it does not hinge upon a specification of qualities, abilities, and virtues that are shared, but rather it is an all-things-considered criterion that underscores our shared intrinsic fallibility as epistemic agents.21 This ‘negative’ definition of epistemic peers has a clear fallibilist appeal that is perfectly coherent with the modest epistemic approach I am defending in this work. Yet, the notion that human beings share an equal likelihood of being fallible is not uncontested. After all – one may argue – from the claim that everybody could be mistaken, it does not follow that everybody is equally likely to be mistaken. Experts may be mistaken, but are less likely to be so vis-à-vis the layman. In plain words, over specific matters, they are more competent. Therefore, the equal likelihood principle does not seem to lead to the equal weight of consideration in collective decision-making. However, the criticism fails to realize that it suffices to grant the fallibilist clause to conclude that everybody in a political constituency – the expert and the layman alike – are mutually accountable in justifying their claims. No matter whether an expert is actually less likely to be mistaken, the possibility of being so is sufficient to commit the expert to a request for justification. And anyhow, even looking at alternative definitions of epistemic peerhood that refer to a request of mutual recognition with regard to epistemic virtues such as intelligence, coherence, attentiveness, intellectual  Alvin Goldman reaches a similar conclusion when he highlights that the presupposition of evidential equality with regard to the access to the same body of evidence should be further investigated, since we can distinguish between the material evidence (‘E’) and the norm evidence that bears upon the system of epistemic norms through which different agents access the same material evidence ‘E’. “I am pointing out an additional type of proposition with respect to which evidence might diverge. This is a proposition of the form ‘Norm X is a correct norm (and applies to the present doxastic choice).’ Two agents can have different bodies of evidence that bear on norm correctness and are relevant to the reasonability of their respective attitudes. So here we highlight a species of evidence—norm evidence, we might call it, as contrasted with material evidence—that is generally ignored in the literature,” Goldman (2010: 208, emphasis in original). 21  “Suppose you find yourself in a disagreement with someone you take to be an epistemic peer. Epistemic peers have (roughly) equal abilities to respond to evidence, which also means that epistemic peers are equally likely to make mistakes,” Peter (2013b: 604). 20

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honesty, etc., these definitions too involve a more or less demanding request of recognizing the symmetric relationship we are part of as epistemic peers that share an equal status as knowers. The advantage of a fallibilist characterization of peerhood, such as the one suggested by Peter, is to ascribe an equal status to participants in processes of decision-­ making in virtue of the actual epistemic conditions of deliberation in which they operate, without appealing to potentially contestable standards of epistemic virtues and faculties.22 In support of this strategy, we can mention the epistemic analysis that I have been providing in this chapter. The modest epistemic paradigm that I defend provides us with a reasonable account of why more often than not we have good reason to accept to share epistemic authority while deliberating over evaluative and highly contested matters. This consideration is crucial for a conception of democratic legitimacy, because it provides agents with epistemic reasons to recognize other participants as putative epistemic authorities. Indeed, once the epistemic significance of reasonable disagreement is spelled put, it appears that fallible agents, even when maintaining trust in their doxastic perspectives, are not entitled to dismiss other parties’ positions as epistemically inferior. Even in case of widely different epistemic performances, the lack of a publicly justifiable argument for referring to a third-personal authority to resolve the disagreement, coupled with the fallibilist clause, provides us with a reason for attributing at least a minimal level of epistemic credibility to people we disagree with. This conclusion relies on the recognition of the existence of genuine reasonable disagreement and the fact that, given that our appraisal of evidence is always mediated and opaque, we have good epistemic reasons to deliberate together in order to reach a better disclosure of the contested evidence at stake. That is, the interpersonal exchange among conflicting parties has an epistemic value, regardless of whether or not such deliberation will reach correct decisions. Therefore this epistemic dimension of political equality still pertains to a procedural account of democratic authority.23 I maintain that this normative request  It is worth noting that in highly contested political contexts, even the standards of intellectual competence may be controversial and we can always incur reasonable disagreement about what are adequate criteria to establish who deserves epistemic authority. “This is important because requiring reasonable citizens to accept a particular view of competence would impose a view on them that conflicts with many sectarian views. So our view allows that when one reasonable citizen considers what he can expect his fellows to accept, he may rely on conceptions of intellectual virtue and relevant considerations that are very different from the conceptions another reasonable citizen uses,” Leland and van Wietmarschen (2012: 725). 23  In the literature there is a wide debate about whether the legitimacy of non-minimalist normative forms of proceduralism partly hinge on epistemic criteria. David Estlund (2008), for example, defends a non-monistic account of legitimation for democratic authority, looking at both the procedural and epistemic virtues of deliberative systems. The argument holds that democratic procedures are authoritative because they are procedurally fair and epistemically accurate – that is, more likely than other decision-making processes to identify just policies. Truth may not be the ultimate goal of deliberation, but it is a side-constraint for good deliberation. Yet, epistemic proceduralists admit that the epistemic value of democratic procedures is modest: for one thing, democracy is not infallible; besides, entrenched disagreement is a fact of public reasoning, no matter how well deliberative procedures are laid out. Estlund argues that the crucial point is not to defend democracy as 22

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represents an adequate fulfillment of the democratic ideal of respecting the reflexive agency and autonomy of all the members of the constituency, notwithstanding their different intellectual, moral and practical abilities. Indeed, in democratic contexts no privileged epistemic position should be granted to any particular agent or opinion. The ideal of democratic legitimacy grounds the validity of democratic decisions partly in the possibility that every citizen, as a co-author of these decisions, sees herself and is publicly treated as a member of the community of epistemic trust.

3.2.3 The Deliberative Constraint of Intellectual Modesty Analyzing the debate over epistemic peerhood, although highly idealized and primarily focused on illustrating the best epistemic strategies to react to reasonable disagreement, has proved relevant for concluding that disagreeing agents, in accepting their shared status of fallible agents, have good reasons to ascribe to each other the status of putative epistemic authorities. Apart from the epistemic reasons in support of this conclusion, in ending the previous section I defended a view according to which it is the democratic setting per se that demands us to acknowledge to each other a moral and epistemic status of mutual symmetry. Now, relying on this normative framework, I want to investigate the normative consequences that can be derived from this notion of mutual epistemic symmetry among citizens who debate over contested issues in real-world democratic contexts. First of all, it should be clarified that assuming the genuineness of reasonable disagreement, does not imply that no public disagreement can be overcame through adequate deliberative processes. For example, regarding the disagreement among two parties between the options p and ~ p, it could be the case that a more attentive examination of the evidence E or a ‘purification’ from incoherence or forms of irrational reasoning in reached thanks to an adequate deliberative procedure. A better disclosure of the body of evidence provides good reasons for determining which of the two parties is more justified in believing what she believes and a consequent doxastic accommodation is imposed on the party that is publicly proved to have less evidential support

the best form of government, but that it is “the best epistemic strategy from among those that are defensible in terms that are generally acceptable. If there are epistemically better methods, they are too controversial —among qualified points of view, not just any points of view— to ground legitimately imposed law,” (2008, p. 42). I agree with Estlund that these considerations matter in democracy, and yet it seems to me that epistemic versions of proceduralism, even if adopting epistemically modest premises and granting a normative role for dissent, remains at odds with the circumstances of deep disagreement that characterize contemporary democracies. Accounts that give priority to the epistemic quality of democracy, rather than focusing on the reconciliatory dimension of democratic processes, miss a crucial aspect: the value of dissent rooted in the definition of democracy as a political system for legitimate collective decisions and the epistemic dimension of political agency spelled out in terms of co-authorship. For an illustration of epistemic proceduralism and an introduction to sound criticisms of this view, see Anderson (2008); Biale and Liveriero (2017); Peter (2007, 2008).

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for what she believes. Conversely, we daily face many instances in which the disclosure of evidence remains uncertain even after intersubjective deliberations took place. In these instances, the parties are allowed to maintain their doxastic perspective and yet the intersubjective exchange of reasons – that plays an epistemic and normative role  – provides both parties with good epistemic reasons for, at least, minimally diminishing their confidence in their own belief and for not dismissing the other party’s belief as totally unjustifiable as epistemically baseless.24 This conclusion involves two important normative outcomes: i. it provides reasons in favor of what I call a modest epistemic attitude toward the evidential force of one’s doxastic states; ii. it grants an epistemic grounding for being tolerant of others’ opinions and beliefs, even when these opinions and beliefs are strongly in opposition to ours (Brink, 1989: 92–95; Galeotti & Liveriero, 2021, Peter, 2013b: 613). Since very often reasonable disagreement cannot be resolved through deliberative processes and intersubjective confrontation, and inasmuch as disagreeing agents have good procedural and epistemic reasons for acknowledging the other party as a putative source of valid epistemic claims, tolerance can be defined as a normative upshot of the actual epistemic circumstances of justice.25 Moreover, as I shall argue in the second part of this work, citizens that share both a tolerant and an epistemic modest attitude when debating with their fellow citizens have normative reasons, as well as pragmatic, for establishing principled forms of compromise. Now I want to focus on defining the deliberative requirement of intellectual modesty. My argument is that reasonable citizens have good reasons to undertake an attitude of intellectual modesty while deliberating public matters with agents who hold views different from theirs.26 Granted that a minimum threshold of epistemic  If the doxastic presupposition is a true fact of our epistemic life as fallible agents, then, even in the case in which from an external, infallible, perspective it is evident that Eliza is right while George is wrong, this would not matter for their situated deliberation, since Eliza and George have no access to the disclosure of evidence available to this external, infallible, point of view. Remember that this was the point maintained by Alvin Goldman about the epistemic gap between the possibility that a correct epistemic system does indeed exist and the epistemic fact that agents can be doxastically justified in holding different, incorrect, epistemic systems. 25  “many of our most important judgments are made under conditions where it is not to be expected that conscientious persons with full powers a reason, even after free discussion, will all arrive at the same conclusion. Some conflicting reasonable judgments (especially important are those belonging under peoples’ comprehensive doctrines) may be true, others false; conceivably, all may be false. The burdens of judgment are of first significance for a democratic idea of toleration,” Rawls (PL: 58). 26  Leland and van Wietmarschen (2012) defend a view quite similar to mine, claiming that the ideal of intellectual modesty should be included within the normative notion of citizenship in liberal societies, as epistemic cautiousness is a sound attitude for epistemic reasons, as much as it is a relevant feature of the collective procedures for granting political coordination. However, the conclusions that they draw from the requirement for citizens to accept a strong form of intellectual modesty are more demanding that the one I defend here. A onerous interpretation of intellectual modesty, in fact, grants reasons in favor of restraining from using private and debatable reasons in public discourse. Also, their account of the epistemic assessment of citizens’ reasons involves strict standards of rationality that ideally agents should meet. Given my aim to be realistic (and defend an account of political legitimacy consistent with the actual circumstance of politics) my 24

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rationality has been satisfied and reasonable citizens prove to be above such a threshold,27 this view stresses that no citizen has the ultimate epistemic authority for establishing that her beliefs, conception of the good or political preferences should be given epistemic priority, in the face of disagreement with other citizens. This epistemic attitude of modesty is grounded in a counterfactual argument: an epistemically reasonable Eliza is ready to accept the possibility that in the case that the evidence at stake were directly and fully accessible and her epistemic capacities infallible her present belief that p might indeed turn out to be false and George’s belief that ~p true. According to the modest epistemic account that I defend in this book, Eliza can take the counterfactual argument as a second-order reason in favor of a modest intellectual attitude toward her doxastic system of beliefs, without endangering her epistemic and agential integrity in believing that p (Brink, 1989: 92–95; Feldman, 2002). The request for intellectual modesty does not mean that reasonable agents are not ready to fight for their own opinions or beliefs, rather it means that they can do so while still accepting the unquestionable fallibility of our epistemic processes qua human beings. Even if agents have good reasons to believe what they hold true in their doxastic systems, the attitude of intellectual modesty requests that agents accept the fallibilist counterfactual clause, that is, they at least contemplate the possibility of being wrong. It follows that there are sound second-order reasons for agents to reasonably diminish (even may be just minimally) the degree of confidence in their first-order beliefs. Moreover, facing qualified disagreement in the context of an opaque and mediated appraisal of evidence, it appears that, prima facie, beliefs that are mutually incompatible can still be maintained with a good degree of credibility and tenability starting from the agent-relative doxastic systems of beliefs. This means that every time that a reasonable citizen strongly disagrees with some fellow citizens and an appeal to an external epistemic authority (whose authority all recognize as legitimate to resolve the conflict) is not available (this is very often the case when evaluative matters are at stake), this citizen should acknowledge that she does not possess conclusive epistemic reasons for assuming that her belief that p is necessarily true and for dismissing the belief that ~p as utterly wrong. Since it is not possible to establish once and for all who is right from the epistemic perspective, then reasonable citizens have good reasons for at least avoiding a dogmatic attitude while debating over political issues. This implies that a reasonable Eliza holds herself to be justified in believing that p, but she is also intellectually modest enough to be aware that, at least counterfactually, it is always possible for her to be wrong. Consequently, she can also hold a second belief, that proposal goes in the other direction, namely asserting that our fallibility as epistemic agents requires us to ascribe the status of putative epistemic authorities to our fellow citizens, out of the respect we owe them as co-authors of political decisions, without a further requirement to establish demanding deliberative and epistemic standards that reasonable citizens ought to meet. 27  Let us say that adequate epistemic criteria must filter away defective (in a strong epistemic sense) or completely irrational reasoning; require a minimal informational set; the respect for common-­ sense epistemic rules and some form of intellectual sincerity.

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is, accepting that George, in evaluating the same body of evidence E starting from his own doxastic system of epistemic norms and beliefs, can indeed be justified in believing that ~p. Given the epistemic paradigm that I have been illustrating in this chapter, it appears that Eliza is not epistemically incoherent in holding both these beliefs at the same time.28 As we shall see, this conclusion is perfectly consistent with the illustration of the epistemic dimension of the practical virtue of reasonableness that I shall provide in the last section of this chapter.

3.3 Reasonableness in Practice In this section of this chapter, I shall investigate the notion of reasonableness, a fundamental civic virtue that is one of the grounding tenets of political versions of liberalism. Rawlsian approaches to political legitimacy, for example, divide the constituency between reasonable and unreasonable citizens, characterizing reasonable citizens as those members of society that are able to respect a reciprocity constraint and abide by fair terms of cooperation. Consistently with the epistemic analysis that I have been developing in this chapter, I maintain that there are specific aspects of the virtue of reasonableness that cannot be fully grasped by looking solely at the ethical dimension of this virtue. Rather, it is important to provide a specific epistemic reading of the reciprocity and the public reason constraints. In the literature, much attention has been paid to different interpretations of the ethical aspects of reasonableness (Boettcher, 2004; Habermas, 1995; Kelly & McPherson, 2001; Moore, 1996; Nussbaum, 2011; Quong, 2004, 2011). Lately, the epistemic dimension of this virtue has started to be debated more thoroughly as well (Estlund, 1998; Li, 2019; Liveriero, 2015 and 2020; Peter, 2013a; Wall, 2014). Rawls touches upon the epistemic dimension of reasonableness briefly, when he claims that reasonable citizens are those that are aware of the impact of the burdens of judgment on their reasoning. However, Rawls does not investigate further the effects of this awareness on collective deliberations. This, instead, is exactly the goal of this last section of the chapter.

3.3.1 The Civic Virtue of Reasonableness The distinction between rationality and reasonableness has been extensively investigated in political theory, specifically in the attempt to carve out different models of political legitimacy whose normativity stems from the agreement that rational (and reasonable) agents are able to reach about a cooperative scheme. According to a  “at least to some degree, people can have systems of beliefs that contain different norms of inference and belief acceptance and still be able to recognize each other’s systems as rational,” Gaus (1996: 43, emphasis in original). 28

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standard definition, rational agents are able to pursue a conception of the good thanks to a self-centered perspective that very often (but not necessarily always) employs a means-ends way of reasoning. Yet, rationality as an agential virtue can be interpreted in two slightly different ways: (i) a rational agent is an agent who tries to maximize the satisfaction of her own interests while bargaining with others; (ii) a rational agent is an agent who pursues her interests in a way that is compatible with other individuals pursuing their own interests. These two meanings of rationality differ in their representation of the way a rational agent takes into account other agents’ interests. A rational individual, being a prudent self-interested agent, should always take into consideration others’ interests; however, there are two ways in which such ‘taking into consideration’ can be spelled out. In (i) the agent reasons upon others’ interests merely as external factors that affect her own attempt to pursue her goals. In (ii), instead, the rational agent evaluates her own interests and the best way to achieve them starting from an awareness of others’ attempts to pursue their own goals and a recognition of their own right to do so, as much as she is doing so herself. According to Sibley (1953: 557) the second account of rationality implies “a preparedness to be objective not in a merely logical, but also in a distinctively moral sense” – in this sense, such an agent proves to be reasonable as much as rational. In PL (48–54) Rawls specifies the different role that these two practical virtues play within his justificatory paradigm.29 Whereas in TJ Rawls had faith in the possibility that the rationality we share as self-interested agents was enough – along with the normative constraints of the veil of ignorance  – to provide a common ground for establishing publicly justified principles of justice, in PL Rawls reckons it is impossible for rationality to grant adequate motivational drive to citizens facing entrenched disagreement.30 In illustrating the normative distance between stability as modus vivendi and stability for the right reasons, Rawls argues that stability as modus vivendi is the kind of stability that can be reached when agents reason rationally according to meaning (i) of rationality, discussed above. In contrast, stability for the right reasons requires that agents take into consideration other agents’ perspectives not just as external constraints on their attempt to achieve their goals, but rather as part of a reciprocity scheme (ii). In this sense, stability for the right reasons cannot be reached if a majority of citizens do not prove to be reasonable as well as  Rationality and reasonableness are both theoretical and practical virtues, involving questions about both what should be believed and what should be done. However, within the literature concerning political legitimacy, I believe it makes sense to refer to reasonableness as primarily a practical virtue. For a wider perspective on this matter, see Peter (2019). 30  In TJ Rawls maintains that rational agents, defined as being mutually disinterested and not envious (p. 124), if compelled to reason without knowing their actual biography, their position in society, their ascriptive characteristics, their social status, etc., would end up acting as impartial individuals moved by benevolence, even though such an attitude is not presupposed as a moral feature of agents. In other words, without the need to presuppose any benevolent attitude toward others, it is the rationality we share as self-interested agents which propels us to abide by some common rules that have been properly selected through the normative device of the original position. 29

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rational. According to Rawls, a reasonable person is aware of the normative constraint of reciprocity and therefore is ready to propose and abide by fair terms of cooperation. The fundamental line of distinction between rationality and reasonableness is that an agent might be rational even in the case where she is the only person alive on Earth, whereas, for proving reasonable, she needs at least a second person with whom to establish a relation of mutual reciprocity.31 In order to properly illustrate the essential role played by reasonableness as a civic virtue in real-world contexts, in this section I shall specify the main features of this practical virtue, focusing primarily on an epistemic reading of reasonableness as an agential virtue. According to Rawls, agents prove to be reasonable when they accept reciprocity constraints and are therefore wiling to abide by fair terms of social cooperation provided that others do the same. Also, they should mutually respect each other’s free and equal moral status. Second, citizens are reasonable, in the epistemic sense, when they accept the burdens of judgment and are able to restrain themselves from trying to impose their private perspectives when publicly debating political matters, therefore respecting the epistemic standpoint of the other agents involved in the debate. It is important to notice that the recognition of the epistemic dimension of the virtue of reasonableness can be read in different ways. One strategy mainly focuses on the rational-justification-requirement, assuming that reasonableness involves stringent epistemic standards to apply to agents’ deliberative processes. The other strategy, instead, employs the reasonableness criterion to evaluate the reasons that reasonable citizens are ready to introduce into public debates over political matters. As we shall see in the next chapter, I defend a weaker public reason constraint than Rawls, assuming that citizens are allowed to use private reasons in the public sphere, as long as they are able to do so while respecting other fellow citizens’ opinions and maintaining an intellectually modest attitude.32 Connecting the definition of the virtue of reasonableness with the conclusions reached in the previous section, I argue that reasonable citizens are those agents who are aware of the limitations of humans’ doxastic activities for establishing knowledge (in Rawlsian terms they are aware of the burdens of judgment) and therefore they are ready to engage in public deliberative processes with a constructive attitude and to share epistemic authority with their fellow citizens. Along these lines, I suggest that citizens can be defined as reasonable when they meet these two criteria:

 “A basic difference between the reasonable and the rational is that the reasonable is public in a way the rational is not,” Rawls, (PL: 53). 32  I think it is important to distinguish between the kinds of reasons that citizens can introduce into the public discourse and, instead, the set of reasons that are available to institutions and legislators for justifying a political decision. Whereas citizens should be allowed to address other citizens with their private views, as long as they meet the requirement of assuming a reasonable attitude toward others, institutions and legislators, in my opinion, should satisfy a more stringent requirement for public reason, avoiding any reference to sectarian views when justifying political decisions to the whole constituency. 31

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(i) the reciprocity constraint: agents are willing to publicly discuss fair terms of cooperation, because they have a sense of justice (in a very minimal, strictly political, sense) and are motivated by it33; (ii) the public reason constraint: accepting the burdens of judgment implies that agents have good reasons for abiding by a general norm of epistemic modesty and enter into public deliberation mutually respecting each other as both sources of valid demands and putative epistemic authorities. This reading of the public reason constraint means that reasonable citizens are ready to assume an attitude of intellectual modesty regarding their epistemic abilities and therefore show a constructive agential posture when confronting other agents over debated issues. Even in the case of widely different epistemic performances, the lack of an ultimate epistemic reason in favor of p or ~ p as a publicly justifiable course of action does not allow any reasonable citizen to try imposing her preference without engaging in a fair exchange with her fellow citizens. Naturally, Eliza can keep believing in the validity of her own perspective, but she should be aware that she does not have a legitimate epistemic authority for imposing her own view upon others, as long as they strongly oppose such a view. Reasonable citizens, in acknowledging other citizens as members of the same cooperative scheme, must be able to respect their intellectual and evaluative autonomy. In technical terms I assume that this requirement grants the epistemic possibility for Eliza to be justified in – sincerely – believing both that p and that George is indeed justified in believing that ~p according to his set of beliefs. This epistemic circumstance pictures a situation in which Eliza and George decide to stick to their own guns in the face of disagreement (that is, Eliza keeps believing that p and George keeps believing that ~p) and yet, they mutually recognize the other as a valid source of justification given her/his personal doxastic attitude. Acknowledging their mutual symmetry as fallible agents engaged in a deliberation over a disputed matter, allows Eliza and George to disagree while respecting the agential autonomy (and the epistemic doxastic attitude) of the other party. This implies that Eliza and George ultimately acknowledge each other as independent sources of valid claims and they do not rule out once for all the epistemic possibility that the other party might indeed be right and they might instead be wrong.34

 “people are unreasonable in the same basic aspect when they plan to engage in cooperative schemes but are unwilling to honor, or even to propose, except as a necessary public pretense, any general principles or standards for specifying fair terms of cooperation. They are ready to violate such terms as suits their interests when circumstances allow,” Rawls (PL: 50). 34  “Universal Disagreement commits reasonable citizens to a strong form of intellectual modesty about their nonpublic views: they believe that all their nonpublic views are disputed by the most competent people, including people who are equally or more competent than they are themselves. Given our assumption that sectarian views count as nonpublic, this is a demanding form of intellectual modesty: reasonable people believe that their sectarian views, views that they often regard to be central to their lives, are disputed by their most competent fellow citizens,” Leland and van Wietmarschen (2012: 733). 33

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I do not think that in order to be reasonable, citizens must abide by a demanding public deliberation constraint such as the one defended by Rawls. In PL (212–226), in fact, Rawls suggests a ‘bracketing strategy’ according to which citizens ought to restrain themselves in public discourse and present only reasons that are acceptable from everyone’s point of view, therefore assuring the respect of a strict public reason constraint. According to my model, the public reason constraint can be read in a less stringent way, allowing citizens to speak their personal view in the public domain, as long as they do so with a reasonable attitude, therefore respecting others as potential sources of valid demands and embracing an intellectually modest stance, thus accepting that the epistemic authority concerning public decisions might be collectively shared. This less demanding reading of the public reason constraint does not make the overall justificatory strategy weaker. Indeed, I suggest that underscoring the epistemic dimension of the reciprocal recognition among disagreeing agents has important normative upshots. The analysis I am defending provides Eliza and George with solid reasons for restraining themselves from basing political decisions solely on private reasons that the other parties do not see as justified. A reasonable Eliza understands that she cannot impose her doxastic view on other members of the polity, assuming that she is ultimately right and everybody else is wrong on the matter at stake. This normative restraint is grounded both in moral reasons – the duty of respecting the equal standing of others and their reflexive agential autonomy – and in epistemic reasons – the recognition of our shared fallibility as epistemic agents and the consequent incentive to share epistemic authority while deliberating together over debated issues.35 According to this account, reasonable citizens are those that are able to be motivated by reciprocity constraints as well as respect the doxastic standpoints of the other members of cooperative schemes. In this sense, reasonable agents are those agents willing to abide by a democratic epistemic ethos that requires them to regard fellow citizens as putative epistemic authorities even when epistemic performances diverge even sharply in quality. When challenged by disagreement with a fellow citizen, reasonable citizens are required – for both moral and epistemic reasons – to avoid any dogmatic attitudes concerning full confidence in their own beliefs and to be tolerant of the views of others. Conversely, any disrespectful attitude of epistemic arrogance assumed by a party engaged in a public debate shows an unreasonable stubbornness and this attitude is absolutely detrimental to the chance of improving the conversation and of finding a collective solution to the stalemate. When citizens stop acknowledging one another as putative epistemic authorities and as moral partners engaged in a collective enterprise, the only way out from the stalemate of disagreement and conflict is formal voting. And yet, even if voting is the ultimate democratic resource to avoid indeterminacy, it should be clear by now that the democratic ideal of legitimacy cannot be exhausted by the public practice of 35  Joel Feinberg, in a seminal paper (1970), has argued that one of the central tenets of liberal theories of justice is defining persons as bearer of rights, with rights being understood as valid claims. In this sense, “to respect a person then, or to think of him as possessed of human dignity, simply is to think of him as a potential maker of claims,” Feinberg (1970: 252, emphasis in original).

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casting ballots and establishing what is the majority’s will.36 As I have already underscored, a non-minimalist normative view of proceduralism stresses the relevance of the criterion of responsiveness to citizens’ opinions and preferences as an essential feature of liberal legitimacy. In this sense, the intersubjective exchange of reasons, even when it fails to resolve the disagreement through the establishment of a shared collective decision, can still have intrinsic value as citizens that take part in these exchanges are pressed to mutually recognize one another as sources of valid claims and as putative epistemic authorities. Deliberation has procedural value—epistemic or practical—if its value does not reduce to the value of its result. What the above discussion of peer disagreement showed is that in some cases of disagreements among peers, each has reason to move, even if it is only a tiny bit, in the direction of the other by reducing the confidence in their original beliefs. This is so even if it one side is—from a God’s eye point of view—correct and the other is not. And it is not so simply because either side presents evidence that the other should incorporate. The reason to move in each other’s direction stems from accountability to epistemic peers. (Peter, 2013a: 1263)

3.3.2 The Epistemic Dimension of Reasonableness and the Notion of Opacity Respect One of the main goals of this chapter is to link my account of the virtue of reasonableness with a specific reading of the notion of equal respect within the political domain. The heart of this proposal is that, given the nonideal epistemic circumstances of politics (to recall, the doxastic presupposition; the opaque appraisal of evidence; the social and diachronic aspects of epistemic processes), the normative promise of democracy to grant equal respect to any participant in the decision-­ making process can be expressed in epistemic terms claiming that participants in collective decision-making processes should acknowledge each other’s status as putative epistemic authorities. Here I move from two premises: first, that a well-­ functioning democracy must allow citizens to fight for the recognition of their own interests and rights; second, that the epistemic circumstances of real-world democracies are such that claims of knowledge, interests and rights are inevitably  James Lindley Wilson (2019) develops an interesting account of democratic equality that revolves around a normative ideal of co-authorship similar to the one I have been illustrating in this chapter. Wilson does not engage with an epistemic analysis of the normative request that each citizen ought to mutually recognize others as valid sources of justification, but I assume that his overall approach is consistent with mine. Interestingly, Wilson and I share the attempt to stress that every political decision is not simply the outcome of a single electoral moment in which citizens (or representatives) cast their ballots. Rather, each democratic decision involves a process extending over a long period of time concerning deliberative processes that are characterized by many different activities in which actors take part with different goals, motivations and roles. Raising awareness about the extended political processes that are inherent to contemporary democracies is very important to support an account of political legitimacy flexible enough to account for different justificatory stages, various political actors, differentiated collective procedures, and so on. 36

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contested. Moving from these two premises, I hold that in a functioning democracy the acknowledgment of the status of putative epistemic authority derives its value from a normative account of political agency according to which citizens, who should be treated on an equal footing and seen as capable of reasoning powers, are the co-authors of democratic decisions. The normative requirement that reasonable citizens should ascribe the status of epistemic putative authority to each other appeals to the democratic ideal of granting everybody the default position of equal respect without first requiring the demos to assess the actual cognitive, moral, and practical abilities of each citizen. In order to properly understand this ideal, it is important to recall a very well-known distinction between recognition respect and appraisal respect (Darwall, 1977). Recognition-­ respect is attributed in virtue of the recognition of others as persons, hence it is ascribed by default, being independent of the evaluation of the actions, deliberative processes and cognitive and moral characteristics of individuals. In this regard, recognition-­respect is a priori and unconditional and it does not admit of degrees. In contrast, appraisal-respect expresses the positive consideration of the deeds, achievements, and character of a person; hence it is a posteriori, conditional on actual conduct and comes in degrees (Carter, 2011; Galeotti, 2011). In the daily life of our personal exchanges with other individuals, we often assess and appraise individuals and esteem or reprimand them accordingly. Assessing the ability of a person to reason according to a high standard of rationality is certainly relevant for granting appraisal-respect to someone. Yet, the liberal-democratic framework requires us to recognize that the status of being free and equal applies to any member of the constituency, independently of her personal achievements, character flaws or rational abilities. In a democracy, every citizen should be fully respected qua free and equal agent, referring to the status of the person as such, regardless of their specific merits or demerits. Therefore, the kind of respect that is due to any citizen is a form of recognition-respect, rather than appraisal-respect. In the literature, the claim that recognition-respect is the most adequate notion of respect within the framework of democratic-liberal societies has been grounded referring to the moral basis of political equality (e.g. human dignity; personhood; etc.). I maintain that a further argument in support of such a notion of respect can be drawn from the analysis of the epistemic dimension of the virtue of reasonableness I have been illustrating in this chapter. Indeed, it is worth recalling that in contexts of pervasive disagreement reasonable citizens are those ready to engage in deliberative processes with an anti-dogmatic attitude and to ascribe to other citizens they are dissenting with the status of putative epistemic authorities. In order to clarify what I mean by putative epistemic authority, let me introduce a specific account of respect that has been defined by Ian Carter. Carter argues that a respectful attitude in the political domain consists in treating citizens as if ‘opaque’ (Carter, 2011), that is, granting to everybody the default position of equal respect, without first requiring the demos to assess the actual cognitive, moral, and practical abilities of each citizen. Granted that subjects reach an absolute minimum of the relevant capacities that allow an individual to be a moral person and therefore to be entitled to equal treatment and respect, then the opacity requirement kicks in, meaning that agents should

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not be differentiated in value for differences in holding capabilities above the minimum threshold.37 Carter refers to the notion of a range property (Rawls TJ: 444–445) to account for the kind of ascription of agential properties we ought to expect of one another in political settings. A range property is a binary property: it is either possessed or not possessed. The possession of a range property means possessing some other scalar properties above a minimum threshold. Agents might vary in the way they possess scalar properties, but all agents possessing them above the minimum threshold, possess the range property equally. At the political level, these minimal criteria can be envisioned in terms of the basic intellectual capacities required to be granted the right to vote. Individuals who do not meet this very minimum threshold are of course rights-holder moral beings, who need to be protected and supported by the social and institutional setting, but they are not directly included in the constituency of the co-authors of political decisions.38 Following Carter, I maintain that the notion of opacity respect is crucial when dealing with interpersonal exchanges at the public and political level (Liveriero, 2020). My point here is that in a democratic setting, where each citizen should be respected as a co-author of public choices, we should respect a commitment to evaluative abstinence, ascribing the status of putative authority to citizens, without engaging in an assessment of persons’ agential, moral and epistemic capacities. It follows that in democratic legitimate settings, citizens should be treated and publicly recognized as equally in possession of the relevant agential, moral and epistemic properties, regardless of the fact that they may not actually be equally competent (Ottonelli, 2012). We can also note that the ideal of co-authorship expresses the fact that democracy is a model of decision-making according to which the legitimacy of political decisions is strictly connected to the possibility of establishing stable and reliable relations of epistemic trust among citizens (Buchanan,

 “When is opacity respect an appropriate attitude? I suggest that we have reason to adopt the attitude of opacity respect toward a particular being when two (jointly necessary) conditions obtain: first, that being possesses dignity as agential capacity (which is to say, it possesses at least a certain absolute minimum of the relevant empirical capacities); second, we stand in a certain relation to that being such that it is appropriate for us to view that being simply as an agent. The basic idea is that when an agent is laid bare—when it is considered as an agent and no more than an agent—our respect for that agent depends on our clothing it with outward dignity as an agent— that is, on our adopting an external point of view, taking the agent as given and refraining from “looking inside” it in the sense specified earlier,” Carter (2011: 556, emphasis in original). 38  We can debate how inclusive the right-to-vote-threshold should be and we ought to be careful to avoid any form of prejudice-based argument in establishing the absolute minimal criteria that ought to be met in order to be granted the right to vote. Yet, there is a sense in which people with severe cognitive disabilities, animals – and maybe even the environment – are bearers of rights, but cannot be directly included within the constituency of co-authors of public decisions. I should note that Martha Nussbaum (2009) contends that the equal citizenship of individuals with substantial intellectual impairments requires that they are enabled to exercise such political rights as voting and jury service through appropriate surrogates. I agree with Nussbaum that the normative commitment to political equality imposes an obligation to find ways to include as much as possible subjects with cognitive disabilities in the decision-making processes, otherwise a large group of citizens would end up being disqualified from the most essential functions of citizenship. 37

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2004; Fuerstein, 2013). At the ground level, democratic epistemic trust should be ecumenical, meeting the requirement of opacity respect with regard to each citizen and therefore resting on an ascription of putative epistemic credibility to every member of the constituency. Yet, it also holds true that a functioning democratic system should be able to provide public procedures to establish which subjects ought to be acknowledged as epistemically privileged sources to whom we should defer for deciding specific matters (for example, scientific committees for public health decisions to be grounded in scientific findings; appointed members of juries; members of boards dealing with goals that require a technical analysis of some sort, etc.). Even though the model I am defending here requires that for public choices each citizen is regarded as a putative epistemic authority by default, as an input condition, this does not mean that legitimate forms of epistemic asymmetries should be ruled out. Rather, when epistemic privileges must be granted, then the opacity requirement ought to be lifted, in order to properly assess – through public accountable procedures – who deserve to be ascribed epistemic authority over specific matters. Here then the legitimacy derives from the adequacy of public and accountable procedures for assessing agents’ warranted expertise to decide about specific matters qua experts.39 That being said, it is important to emphasize that in general terms, I have been arguing that, in a democratic setting, citizens are requested to mutually recognize each other as co-authors of political decisions, meeting the normative demand to treat fellow citizens as opaque and to ascribe to them the default status of putative practical and epistemic authorities. This means that the quest for democratic legitimacy relies, ultimately, on an analysis of how citizens relate to one another, and whether we can establish a social system in which a majority of citizens respect the relational dimension of justice as expressed by the basic notions of liberalism. This conclusion is relevant for at least two reasons: i. it shows that in democratic settings the way in which we satisfy the normative requirement of equal respect consists in an ascription to every citizen of the status of putative practical (that is, every citizen share the ability to impacting political choices with fellow citizens) and epistemic (that is, no citizens are dismissed as epistemically not – or less – credible) authority; ii. this normative requirement of respecting the political agency of my fellow citizens is reflected in the necessity for liberal institutions to abstain from assessing the actual intellectual and moral abilities of each citizen and treat them as opaque. I maintain that the ideal of co-authorship, when adequately coupled with a relational  It is important to point out that a functioning collective body ought to find public strategies to ascribe epistemic privileged authority to mostly non-controversial scientific findings. It is worth highlighting that my account of democratic legitimacy – in which citizens are viewed as co-authors who share epistemic authority when they deliberate over disputed matters with a reasonable attitude – is indeed compatible with the request for assuming adequate forms of epistemic deference toward experts. When the ascription of expertise is warranted through publicly justified procedures, reasonable citizens and their opinions are not diminished by deferring to experts’ opinions regarding the specific field in which the expert works. For a deeper analysis of this topic, see Anderson (2011), Jønch-Clausen and Kappel (2016), Leland and van Wietmarschen (2012), Torcello (2011). 39

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reading of liberalism (both in its normative and epistemic dimensions), provides us with the best account of democratic legitimacy within political contexts of pervasive conflict and hyperpluralism. Furthermore, this general account has implications for determining how we ought to respond to the nonideal circumstances that are typical of democratic life and that often endanger the actual realization of this ideal. In particular, this paradigm provides us with a normative standard against which to assess systemic injustices perpetrated toward some members of the constituency, often members of unprivileged groups. This critical analysis will be developed in the last section of Chap. 6, where I deal with an ex-post evaluation of the capacity of real-world democracies to satisfy the normative-oriented procedural account of democratic legitimacy that I defend in this book.

3.3.3 Epistemic Deference and Inconclusive Collective Reasoning There is still an important clarification of the definition of reasonableness that is in order: specify the range of application of the reasonableness criterion. Famously, Rawls has employed the term reasonable to evaluate the personal attitude shown by some citizens, but he also has used the very same criterion for characterizing a specific set of comprehensive doctrines. Furthermore, as we know, Rawls has claimed that we can define as reasonable any form of disagreement in which reasonable citizens end up disagreeing, notwithstanding the fact that they respect each other as free and equal and are willing to abide by cooperative norms. According to Rawls reasonable comprehensive doctrines are defined through a loose account (PL: 58–65): (i) A reasonable doctrine is an exercise of theoretical reason and it covers the major philosophical, moral and religious aspects of human life. (ii) Both theoretical and practical reason are used together in its formulation, since a comprehensive doctrine singles out which values count and how to balance them when they conflict. (iii) While a reasonable comprehensive view is not necessarily fixed and unchanging, it normally belongs to, or draws upon, a tradition of thought and doctrine. Although stable over time, and not subject to sudden and unexplained changes, it tends to evolve slowly in the light of what, from its perspective, are seen as good and sufficient reasons. In other words, Rawls provides standards for distinguishing between reasonable and unreasonable holders of reasonable or unreasonable comprehensive doctrines. By contrast, I maintain that the criterion of reasonableness can play a fundamental normative role in characterizing the attitude of agents and in distinguishing a specific form of public disagreement, but is actually misleading when employed for

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assessing whether the comprehensive doctrines privately held by citizens can be categorized as reasonable or unreasonable. Even though it is true that assessing the attitude of citizens with regard to their adherence to reasonableness constraints implies an appraisal of the reasons that such citizens hold in the public arena, still I maintain that it is normatively important to draw a line between the judgment of the specific attitude shown by citizens while debating and a general attempt to assess comprehensive doctrines in terms of reasonableness. Indeed, if we look at the actual political interactions among citizens and between citizens and institutions, it appears that reasonableness is a virtue that agents hold in different degrees and the very same individual can prove to be perfectly reasonable on some issues and unreasonable on some others. Given this gradual characterization of reasonableness as a property, I argue against the opportunity of employing this concept to discern between different comprehensive doctrines. First of all, the notion of comprehensive doctrines is in itself quite loose, since not every doctrine is comprehensive to the same degree and agents do not hold their private preferences, ideas, values and other features that compose their comprehensive doctrines all with the same strength (or with the very same justificatory force). Second, the same unreasonable comprehensive doctrine can be shared by two agents who happen to strongly diverge with regard to their intersubjective attitudes, one proving to be politically reasonable and the other holding this doctrine with a fanatic and illiberal attitude toward those who disagree with her. In this instance, does it make sense to describe both agents as unreasonable citizens, since, while they both support an unreasonable doctrine, one of them does so in a reasonable manner? In order to evaluate the rationale that moved Rawls to propose an assessment of comprehensive doctrines through the criterion of reasonableness, introducing the distinction between politically and philosophically unreasonable citizens (Kelly & McPherson, 2001) may be useful. According to this distinction, it is possible to have a more stringent notion of the category of unreasonable citizen that hinges on a philosophical definition of reasonableness. In the philosophical sense, a doctrine is unreasonable because it is epistemologically weak (or plainly irrational) from the theoretical standpoint; or, also, it can be defined as unreasonable because incompatible with scientific findings generally accepted; or because it supports notions that are inconsistent with some moral tenets of democratic societies (a comprehensive doctrine that defends a theory of gender hierarchy, for example). However, the very same citizens who privately support these views can still behave reasonably in the public domain meeting the requirements of political reasonableness. A politically reasonable citizen is prepared to recognize in fellow citizens the status of free and equal persons, to abide by fair terms of cooperation and to restrain herself from imposing her partial view on others while publicly debating. The political notion of reasonableness is determined thanks to a narrower and strictly political standpoint. According to this view, a citizen can be considered politically reasonable even when she holds a philosophically unreasonable doctrine. Politically reasonable citizens are those agents who prove able to respect a compatibility requirement with “the greatest range of equal basic rights and liberties for all” (Kelly & McPherson, 2001: 42), regardless of whether the doctrines they privately hold can be defined as

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philosophically reasonable. I maintain that assessing citizens on their social attitude toward other fellow citizens and toward political institutions, rather than investigating the philosophical reasonableness of their private views is correct for both normative reasons (that is, in order to fully respect every member of the constituency, institutions should not denigrate citizens’ deep values as theoretically weak or epistemically unjustified exposing the comprehensive doctrines they hold to public scrutiny) and pragmatic ones (that is, fostering deliberation and increasing the chances of reaching a stable agreement). Moreover, since the realm of politics involves constant attempts to establish and maintain cooperative schemes among individuals who are in conflict, justificatory procedures should be as inclusive as possible of different perspectives, both reasonable and unreasonable. It follows that establishing evaluative standards, such as the reasonableness criterion, that do not run afoul with the ideal of inclusiveness is fundamental.40 Along similar lines, Emanuela Ceva, in her book Interactive Justice (2016), has introduced an ‘acceptability test’ within her paradigm of procedural justice. She claims (pp. 118–131) that such a test provides a justification for procedurally egalitarian interactions whose strength depends upon the degree of reasonableness shown by the agents involved in the interaction. Ceva distinguishes between (i) ideally reasonable parties; (ii) nonideally reasonable parties; (iii) liberal nonreasonable parties and (iv) nonliberal nonreasonable parties. This taxonomy is consistent with my analysis because it refers to agents’ attitudes, rather than classifies comprehensive doctrines along the lines of reasonableness. Moreover, this account is sensitive to the intuition that reasonableness and unreasonableness come in degree, because they are not all-or-nothing properties. In her analysis, Ceva concentrates on the notion of interactive justice, since her goal is to emphasize that “procedurally regulated interactions are recognizes as an independent locus of justice” (2016: 5). Focusing on the justice of interactions rather than on the outcomes of democratic procedures, Ceva highlights the intrinsic procedural dimension of relational justice.41 Ceva’s conclusions are relevant for my line of analysis, since the acknowledgment of political procedures as an independent locus of justice is an important aspect of my proposal of political legitimacy. It is worth recalling that an adequate account of political legitimacy should provide good reasons for respecting the outcomes of public procedures of decision-making even to citizens that privately oppose these decisions. This means that the grounding reason for the legitimacy of these decisions relies on the procedural value of the processes through which these

 “Wide public justification, that is, a form of justification by agreement that aims to include as many people as would be consistent with the political values of democracy. This is likely to include significant numbers of unreasonable people,” Kelly and McPherson (2001: 42). 41  It is worth noting that Ceva distinguishes her account of interactive justice from strictly relational understandings of justice (2016: 95–97). Whereas the relational dimension of her approach is defined starting from an intrinsic account of proceduralism (i.e. procedures have an inherent value as loci of justice), she argues that contemporary accounts of relational justice tend instead to rely on instrumental proceduralism (i.e. procedures are valued as instruments to express certain normative commitments). 40

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decisions are made, rather than depending upon the quality of the decisions per se. Against this background, it is important to understand that the epistemic dimension of my account of democratic legitimacy is intrinsically relational (i.e. looking at the relation of mutual accountability in which citizens found themselves when they accept to treat one another as co-authors of democratic decisions), rather than justificatory-oriented. Given this general outlook, I assume that under non-ideal circumstances, the criterion of acceptability of public decisions rest on the notion of robustness. In looking for public robust decisions, a political democratic setting tries to establish intersubjective interactions that are conducive to solutions to collective conflicts that, in respecting the agency of all the agents’ involved, can avoid any form of unwarranted epistemic deference, therefore satisfying the no-deference constraint that I illustrated in Chap. 1. In fact, collective processes of decision-making in which reasonable citizens embrace an intellectually modest attitude and adopt a reflexive attitude in confronting fellow citizens’ opinions are conducive to public decisions whose robustness does not depends upon the request to minority members to show any epistemic deference toward these decisions. This means that Eliza is not compelled to change her mind and start believing that ~p after a democratic process of decision-making in which the political choice Ʊ, incompatible with the belief that p, but supported by the belief that ~p, has been selected by the majority of citizens. Eliza can still keep believing in the justification of the belief that p, and try to ex-post publicly contest the decision Ʊ. However, if the decision-making procedures have been laid out correctly and Eliza’s opinions and preferences have been given adequate weight within the collective processes of decision, then she has good reasons to acknowledge the legitimacy of Ʊ, even if she privately opposes it. Since robust political decisions are the outcome of decision-making processes that are responsive to all members of the constituency and reasonable citizens enter into an interaction of symmetrical recognition, both morally and epistemically, then even dissenting minorities have sound procedural reasons to acknowledge the legitimacy of these decisions.42 As I shall argue in Chaps. 6 and 7, it is not plausible to expect that collective processes of decision-making that attempt to fulfill these requirements solely aim at forms of consensual agreement. Rather, a liberal conception of political legitimacy constrained by the actual epistemic circumstances should be open to accept as adequate many plausible forms of agreement, such as convergence, incompletely theorized agreements and compromises, that are more respectful of citizens’ reflexive agency, since these forms of agreement do not impose on the constituency a single right solution to every political conflict. Less idealized forms of agreement such as convergence, compromise and even bargaining are not just more realistic under the actual circumstances of real-world democracies. These solutions to collective impasses prove very powerful in avoiding indeterminacy and  Bellamy (1999: 179–180) states: “individuals are more likely to accept the legitimacy of decisions they disagree with if they feel they have been to some degree involved in making them, that their interests have been explicitly consulted and that there are opportunities for re-opening the debate in the future.” 42

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in resolving stalemates induced by inconclusive collective reasoning.43 Since, as we have already seen, inconclusive reasoning is a constant challenge for public deliberation, it is very complicated to offer public arguments that can result victoriously justified for citizens that hold conflicting and often incompatible doxastic systems of beliefs. The analysis of the actual epistemic circumstances of public justification that I outlined in this chapter has shown us that, even when reasonable citizens meet moral and epistemic constraints, inconclusive reasoning between Ʊ and Φ as possible public options, is a reasonable outcome of collective processes of decision-­ making. However, even if public practices of decision-making that satisfy the constraints imposed by a liberal conception of democratic legitimacy are inconclusive on many matters, still these practices are the best we can establish in order to fully respect the autonomy of all the agents involved. Even though the appeal to non-public, sectarian reasons may sometimes help in resolving a deliberative impasse, giving in and accepting this solution would run afoul of some fundamental tenets of liberal legitimacy. The trade-off between inconclusive reasoning and sectarian justifications is not a winning one, since it would transform public decisionmaking processes into unresponsive and disrespectful (and sometimes utterly anti-liberal) public forms of reasoning. We can defend a general preference for public reason as a regulative ideal for liberal settings of political discourse is always preferable, even when public reason is not conclusive between courses of action Ʊ and Φ (Gaus, 1996: 223–230; Quong, 2011: 286–287). Refuting a general account of political deliberation that allows for forms of sectarian justifications to impose on the whole constituency non-publicly justified decisions does not mean that any form of partisan reasoning should be ruled out. As I have already claimed, I defend a less demanding constraint of public reason than Rawls. Against this backdrop, in the next chapter I will argue that, in order to avoid constant inconclusive political reasoning or, on the other hand, to give in to sectarian forms of collective reasoning, reasonable citizens ought to agree on the normative validity of a justificatory framework. For now, let me add that the analysis developed in this chapter, following the themes illustrated in Chaps. 1 and 2, has reached two very important preliminary conclusions: (i) it is reasonable to argue that citizens can reach stable agreements over the validity of specific political decisions although maintaining this agreement for different (and often incompatible between one another), doxastically justified, reasons.

 Jonathan Wolff in his Ethics and Public Policy. A Philosophical Inquiry (2011) defends a general account of political legitimacy that is quite similar to mine, since it relies on the intuition that public agreement about a moral judgement matters more than the truth of that judgement and that our political enterprise ought to be structured with a general bottom-up approach. Also, in investigating how to solve wide-spread disagreements over important and contested public policies, Wolff relies on compromise-based solutions, showing a commitment similar to mine in favor of less idealized forms of agreement than consensus. 43

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(ii) reasonable citizens, in engaging collectively in intersubjective exchanges of reasons and judgments, should abide by a constraint of intellectual modesty and ascribe to one another the status of putative practical and epistemic authority.

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Chapter 4

Justification Under Nonideal Circumstances: Reflective Agreement and Relational Liberalism

This appeal to holism and overlapping consensus makes a schematic case that joint moral reasoning is possible even in the face of deep moral disagreement. It reflects at least a bare possibility. When moral disagreement is deep, we want to know more about how the parties can reasonably approach agreement. Each will need to be willing to compromise: to revise his or her view in a way that he or she would not have been willing to do, but for some modicum of concern or respect that he or she has for the other party. And this compromise must go deep, in that it must extend to what each counts as right or wrong, or as worth seeking or avoiding for its own sake. Henry Richardson (2009, 40–41). How do we stay there once we achieve a well-ordered society? […] telling a plausible story about how we might get there from here make it more plausible that we could stay there once we got there, since getting there is generally harder than staying there. The story about how we might develop a wider and deeper overlapping consensus should make it seem more plausible that, if we were raised in a well-ordered society governed by a political conception of justice as fairness, we could maintain our commitments to giving priority to justice despite the fact of reasonable pluralism.” Norman Daniels (1996: 151).

Abstract  In this chapter I develop my own proposal for a workable form of political liberalism that can be intuitively referred to as relational liberalism and that I describe, a little provocatively, as laying out a path ‘beyond Rawls’. My goal is to argue that relational liberalism is compelled to establish procedures of decision-­ making that try to include every member of the constituency, whether they are reasonable or not. In order to show the distance between my proposal and the Rawlsian paradigm, in this chapter I begin by illustrating what I believe is the most coherent and reliable defense of Rawls’s justificatory paradigm, the one provided by Jonathan © Springer Nature Switzerland AG 2023 F. Liveriero, Relational Liberalism, Philosophy and Politics - Critical Explorations 24, https://doi.org/10.1007/978-3-031-22743-1_4

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Quong in Liberalism without Perfection (2011). The justificatory strategy that I support relies upon the alternative view of the overlapping consensus defended by Quong and focuses on the possibility that real-world citizens might converge on the validity of a loose normative framework of evaluative standards and liberal ­organizing ideas extrapolated from ongoing democratic practices. Thus, I shall argue that the nonideal phase has two goals: (i). putting in place justificatory processes to legitimate political decisions to the widest possible constituency of real citizens (criterion of liberal inclusivity); (ii). trying to establish a workable (for the specific political community of reference) public justification of a specific interpretation of the normative intuitions, standards and ideals that constitute the loose background framework of political liberalism (criterium of shared standards). Keywords  Relational liberalism · Loose liberal framework · Public culture · Practice-dependent approach · Reflective agreement In Chap. 2, I illustrated Rawls’s proposal for a strictly political liberalism and I highlighted the dilemmatic tension inherent to this model of legitimacy. In order to resolve the intrinsic tensions of the political liberalism paradigm, I suggested that we should refute the epistemic abstinence that Rawls assumes as necessary for establishing a freestanding justification of the political conception. I then illustrated the often overlooked epistemic role that RE, as a proper coherentist method of justification, plays within Rawls’s justificatory strategy. In Chap. 3 I spelled out the actual nonidealized epistemic circumstances of contemporary collective settings and I defended a modest paradigm in epistemology. I maintain that specifying the epistemic paradigm that supports political liberalism is very important in order to develop a justificatory proposal that is solidly grounded and that can respond adequately to some issues that remain unresolved in PL. In this chapter I develop my own proposal for a workable form of political liberalism that can be intuitively referred to as relational liberalism and that I describe, a little provocatively, as laying out a path ‘beyond Rawls’. In order to show the distance between my proposal and the Rawlsian paradigm, in this chapter I begin by expounding what I believe is the most coherent and reliable account of Rawls’s justificatory paradigm, the one provided by Jonathan Quong in Liberalism without Perfection (2011). Quong, in defending an anti-perfectionist version of liberalism, clarifies most of the unresolved issues related to the justificatory strategy envisaged by Rawls in PL. In this sense, I take the version of political liberalism defended by Quong as the most coherent account of a hyper-Rawlsian version of anti-­perfectionist liberalism. In the first section of this chapter I illustrate Quong’s interpretation of Rawls’s proposal. Then, in Sects. 4.2 and 4.3, I introduce my own proposal for a revised version of the justificatory strategy of political liberalism. To avoid dilemmatic outcomes, the strategy I envisage clearly distinguishes between the goals and strategies of the ideal and nonideal phases. Following an interesting insight by Sebastiano

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Maffettone (2010),1 I describe my account of relational liberalism as composed of two dimensions: a liberalism-frame and a liberalism-painting. The liberalism-frame represents the loose normative framework outlined in the ideal stage of the theory. The ideal analysis, thanks to a freestanding argument, provides us with a political conception that mirrors some latent normative ideals extrapolated by the historical political context. This loose framework is justified in the light of the organizing ideas that are object of an overlapping consensus by reasonable citizens. This normative framework functions then as a standard for establishing adequate processes of decision-making and confrontation among citizens. The liberalism-painting, instead, represents metaphorically the phase in which actual political decisions are taken. The liberalism-painting stands for the daily routine of the democratic game: the deliberative and confrontational moments; election days; debates in the public sphere; the parliamentary dynamics; review processes by the judicial system; conflict management; ex-post contestation of laws and political decisions; etc. These dynamics involve both regular citizens as well as institutions, representatives, and other actors. As I have already illustrated, Rawls assigns a light justificatory role to the nonideal phase of the theory. In fact, in his paradigm the ideal phase provides all the normative force for the theory. For guiding “the course of social reform” (TJ: 215) it is necessary to define a “perfectly just scheme” (ibid.). Only after having outlined an ideal conception of a perfectly just society, can we then engage with nonideal theory. In his opinion, the nonideal phase deals with the fact that under nonidealized circumstances full compliance with the principle of justice by citizens cannot be assumed a priori. Therefore, the task of political theory is to amend as much as possible the nonidealized circumstances in order to bring them closer to the favorable circumstances described in ideal theory. The more adequately the nonideal circumstances are amended, the more stable the compliance with the principle of justice by actual citizens becomes. According to this approach, the specific aim of nonideal theory is to assess the transitional aspects of justice, in order to close the gap as much as possible between the unfavorable circumstances of nonideal contexts and the favorable circumstances that characterize the ideal reasoning. Rawls maintains that nonideal theory has no goals of its own, it is always developed in comparison with the justificatory framework established by ideal theory.2 In this sense, nonideal theory ought to deal both with the unfavorable circumstances of political contexts  “To understand PL, it is necessary to appreciate the dual role that liberalism plays in it. Using the analogy with the painting and its frame, one could say that in PL the meta-theoretical liberalism of the ‘frame’ coexists with the ethical-political liberalism of the ‘painting’, which is based on the theory of justice as fairness. The former is overarching, while the latter can be based on different comprehensive reasonable doctrines, with just as fairness being one of them,” Maffettone (2010: 215). 2  “Nonideal theory asks how this long-term goal might be achieved, or worked toward, usually in gradual steps. It looks for policies and courses of action that are morally permissible and politically possible as well as likely to be effective. So conceived, nonideal theory presupposes that ideal theory is already on hand. For until the ideal is identified, at least in outline—and that is all we should expect—nonideal theory lacks an objective, an aim, by reference to which its queries can be answered,” Rawls (1999: 89–90). 1

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and with the tendency of real-world individuals to not fully comply with normative principles. Looking at the metaphor that I introduced, for Rawls the nonideal phase would try to copy the wonderful painting depicted by the ideal phase, although using dull paint colors, defective brushes and a torn canvas. By contrast, according to the view that I want to defend in this work, the ideal theory provides well-justified arguments for establishing a loose normative liberal framework, while nonideal theory deals with the actual political processes to reach legitimate decisions in social contexts of deep disagreement. Hence, ideal theory constitutes only the frame of the painting, while the original painting should be drafted by nonideal theory. Admittedly, this division of labor implies that we cannot establish in advance what the outcomes of the nonideal procedure are going to be, since the ideal theory provides us with a normative framework for regulating deliberation within the nonideal stage, rather than providing us with a full-fledged image of what justice requires. Further, another important aspect is that is impossible to evaluate whether a frame suits a painting, before trying to put them together. This is true the other way around as well: before we start painting, we do not know what image is going to be represented in the painting, and yet we can count on a solid and stable frame for establishing in advance what should be the limits of the painting. The value of the frame stems from the fact that the frame is useful to reveal the value of the painting. By the same token, the painting itself requires the frame in order to be complete. This metaphor, therefore, helps me illustrate the relation between the ideal and nonideal phase within the justificatory paradigm that I am defending. We need both the phases to avoid dilemmatic outcomes. Yet, the two phases should be clearly distinguished, and not too much emphasis should be attributed to the value of the framework alone, since the frame on its own has not much relevance. Whereas a balanced equilibrium between a beautiful painting and a matching frame is the final goal for our theory. The ideal phase, focusing on spelling out sound philosophical-normative arguments, provides us with a useful framework for adequately reasoning about political matters. It establishes an array of evaluative standards and ideals that reasonable citizens would accept as justified under idealized circumstances. These shared standards, following the metaphor, are defined and justified in the stage of liberalism-­ frame, thus they function as a frame usually does with regard to a painting, to wit, they provide the limits within which the picture can be painted. Even starting from the same liberalism-frame, and therefore assuming the validity of some constraints on practical reasoning justified in the ideal phase, it appears that different political contexts will probably develop different versions of the liberalism-painting. It is not possible to establish in advance what form the painting will take, as many different paintings may be in the head of the artist; however, any possible solution will be constrained by the same normative frame. In this sense, the painting-frame metaphor expresses the fact that real-world democracies are going to interpret and implement differently the same loosely justified liberal ideals, normative principles and evaluative standards. This outcome expresses the wide pluralism that characterizes contemporary societies and it is fully respectful of the intrinsic work in progress dimension of liberalism.

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4.1 Anti-perfectionist Political Liberalism 4.1.1 Two Models of Political Liberalism In Liberalism without Perfection Quong defends a strong anti-perfectionist version of political liberalism. In developing his paradigm, one of the most important issues for Quong is to establish what is the adequate justificatory constituency for political liberalism. In other words, the first inquiry to settle, as I have already illustrated in the introductory chapter, is whether we ought to envisage a justificatory strategy that provides reasons in support of liberalism for an unrestrained constituency (that is, composed of reasonable and unreasonable citizens, as much as of liberal and illiberal ones) or instead whether political liberalism can be adequately justified only by restricting the justificatory constituency to already liberal citizens. In this book, I have underscored the importance of defining the justificatory constituency of reference already in the introduction, where I illustrated Catriona McKinnon’s thesis of on this matter. Quong argues that, in order to address this issue, we should distinguish between two conceptions of liberalism. According to the external conception of political liberalism, the constituency of actual citizens in real-world democracies works as an external constraint on deliberation about the content of any liberal theory. Following this perspective, pluralism is described as a brute fact of reality that political deliberation should accommodate in the best way possible. The external conception accepts the nonideal circumstances of justice as external constraints on the development of liberal theory. However, this model assumes that an ideal and completely satisfactory justification would be able to overcome deep disagreement, therefore proving able to be accepted as valid by the widest constituency possible.3 Conversely, the internal conception of political liberalism interprets the fact of pluralism as a natural outcome of a liberal political environment in which the agential autonomy of citizens is fully respected. According to this conception, the liberal tradition has established priority for a tolerant attitude and provided justice-oriented reasons in support of the ideal of respecting others’ opinions and their freedom of conscience. In this sense, the internal conception strictly links political liberalism to a specific historical context and to a tradition. Furthermore, it describes pluralism not simply and primarily as a fact to manage, but rather as a fundamental feature of any liberal democratic society.4 After having illustrated these two conceptions, Quong makes an important argumentative move: he argues that an internal  According to Quong, both Habermas and Raz have interpreted Rawls’s account in the terms of an external conception of political liberalism, therefore criticizing his paradigm from an interpretative standpoint that Quong deems incorrect. See Quong (2011: 139, footnote n.1). 4  “This diversity of doctrines–the fact of pluralism–is not a mere historical condition that will soon pass away; it is, I believe, a permanent feature of the public culture of modern democracies. Under the political and social conditions secured by the basic rights and liberties historically associated with these regimes, the diversity of views will persist and may increase. A public and workable agreement on a single general and comprehensive conception could be maintained only by the oppressive use of state power,” Rawls (1987: 4). 3

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c­ onception of political liberalism, in order to be fully consistent with its historical development and regulative ideals, ought to restrict the justificatory constituency to reasonable members of a well-ordered society, that is, those citizens who already share liberal premises and normative commitments in their doxastic sets of beliefs (see Quong, 2011: 135–160). This distinction between external and internal conceptions of political liberalism is very important, as it provides a perspective through which analyze different topics connected with the general issue of political justification. First, this distinction stresses how relevant it is to discriminate between an idealized and nonidealized conception of the political constituency. Second, determining which of the two models is the most adequate implies also taking a stance with regard to the best procedure for dealing with disagreement (reasonable or unreasonable). Third, this distinction helps to determine what kind of normative relation obtains between the concepts of the right and the good. In contrast to many contemporary authors, Quong defends a strategy according to which reducing the justificatory constituency to a liberal constituency is a valid move, since any attempt to fully validate liberalism in the face of an unrestrained constituency would distort liberalism itself, endangering the overall consistency of this political conception. The willingness that Quong shows in accepting a reduced scope for liberalism in order to save ‘its soul’ is what makes me define its model as hyper-Rawlsian. Quong’s anti-perfectionist drive involves a suspicious attitude toward versions of liberalism that try to ‘convert’ as many citizens as possible to the liberal cause. For Quong, any version of liberalism that is successful in convincing many previously illiberal citizens of the validity of the liberal conception would necessarily rely on some perfectionist arguments. Therefore, Quong’s solution to the justificatory dilemma is to give priority to the philosophical-normative horn, letting go of more ambitious plans with regard to extending the justificatory strategy to include unreasonable and/or illiberal agents as well.5 According to Quong, the external conception of liberalism is too unrealistically ambitious: it sets goals for liberal theory that are out of reach. For him the attempt to publicly justify a political conception of liberalism referring to the unrestrained  “Critics have often complained that there is something suspiciously circular about political liberalism’s justificatory constituency. Of course liberalism can be justified to liberals, the critics say, there is nothing surprising or philosophically noteworthy about that. These critics seem to believe that unless we aim to justify liberalism to everyone, including the illiberal or unreasonable, then the project of political liberalism is a failure. But this view is a puzzling one. Justification, as Rawls says, is reasoning addressed to others, and as such, it requires some common ground from which the reasoning can begin. But this is exactly what seems to be missing in the case of the unreasonable or illiberal: there is, by definition, little common normative ground with unreasonable people. This does not mean that we (liberals) cannot argue with unreasonable or illiberal people, nor does it mean that liberal justice is not, in one sense, addressed to such people. Liberal justice is addressed to everyone in their capacity as free and equal citizens who participate in a fair system of social cooperation. The practical reasons generated by this ideal apply to everyone (including those who reject this ideal), though the idealized constituency of persons who determine the content of liberal justice must be limited to those who accept the fundamental values of freedom, equality, and fairness,” Quong (2011: 181, emphasis in original). 5

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sets of beliefs of a nonidealized constituency is doomed to fail. The external conception is both less demanding and more ambitious than the internal conception. On the one hand, the external conception is theoretically less onerous, since it does not impose strong idealizations at the beginning of the justificatory strategy, and can therefore more easily offer justificatory sufficient reasons to the unrestrained constituency of actual citizens. On the other hand, this conception is very ambitious, since it assumes that stable collective agreements over a liberal conception can be reached notwithstanding the pervasive disagreement that characterizes real-world political societies. The external conception is very optimistic regarding the ability of sound normative arguments to convince a majority of an unrestrained constituency of the validity of the liberal project. Conversely, the internal conception of political liberalism assumes the burden of proof regarding the introduction of strong idealizations arguing that an anti-perfectionist liberalism can consistently face disagreement if and only if this disagreement is reduced to reasonable forms. In this sense, through the argument for an idealized constituency, this model provides robust normative arguments for evaluating political liberalism as the most viable and coherent theory of justice within a context of reasonable pluralism. In my opinion the most important difference between these two conceptions of political liberalism derives from a different perspective with regard to the definition of the major aim for a theory of liberal legitimacy. According to the external conception, the prior goal of political liberalism is to achieve a broad agreement on the validity of a political conception starting from disagreement that, in our contemporary societies, is often deep and unleashed. In this regard, the procedure of justification of political liberalism is assumed to be extremely powerful, since it should be able to overcome the brute fact of pluralism and to reach a binding consensus that ideally involves every member of the constituency. Whether this hope is realistic or not is an issue to be analyzed in the development of this chapter. With regard to the internal conception, by contrast, it is important to highlight its ‘reconciliatory dimension’. For, even if it is true that this model starts with strong idealizations, this conception tries to achieve a collective agreement given the fact of pluralism, not in spite of it. This means that, in light of Rawls’s self-criticism in PL, political liberalism ought to establish a justificatory strategy that assumes the fact of (reasonable) pluralism as a fundamental characteristic of liberal societies, therefore affecting the definition of the justificatory constituency of reference and the standards for assessing the reasons that can be employed in public processes of justification. Keeping track of the theoretical distinction between justification and legitimacy (Simmons, 1999), Quong observes that the internal conception is the only one that can guarantee both an adequate justification for political decisions and full legitimacy in the sense that citizens subjected to those decisions have good reason to recognize them as valid. The initial idealizations, limiting the scope of justification to a constituency of reasonable members, grant that these reasonable agents are able to acknowledge the legitimacy not just of perfectly just institutions, but also of reasonably just institutions.

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In pluralistic liberal societies where citizens reasonably disagree with one another, justice is best promoted by adopting a standard which declares the exercise of state power to be legitimate provided it can be justified by appealing to principles or conceptions of public justice that free and equal citizens could all reasonably accept even if they do not in fact accept the exercise of state power as perfectly just. (Quong, 2011: 133, emphasis in original)

This reading of the notion of political legitimacy is compatible with the real epistemic circumstances of justification that I outlined in the previous chapter. As a matter of fact, this account of legitimacy does not require full agreement by agents on the correctness of political decisions. Rather, granted the pervasive disagreement that characterizes contemporary political societies, and the impossibility of an anti-­ perfectionist version of liberalism to defend a comprehensive justification (in opposition to a freestanding one) of the political conception, it is important to imagine a model of legitimacy that allows for asymmetry between personal comprehensive beliefs on the one hand, and acceptance of political legitimacy for political reasons on the other hand. This means that reasonable citizens are able to acknowledge legitimacy to political decisions even when these decisions do not perfectly fit their individual preferences. Now, let me try to connect this interpretation of the principle of legitimacy with the definition of reasonableness provided in the previous chapter. I argued that reasonable citizens, accepting both the moral and epistemic constraints of the actual circumstances of justification, understand that Eliza might be justified in believing both that p and that George, given his own system of beliefs, might indeed be doxastically justified in believing that ~p. From this characterization of reasonableness, it follows that an agent is not necessarily incoherent in believing that a certain political decision q (for example the decision to extend marriage rights to same-sex couples) is wrong, and yet that the very same decision q is politically legitimate, since decision q has been selected through an adequate process of decision-making that procedurally granted equal consideration to the perspectives of all the citizens involved. According to the view I am defending, reasonable citizens, in being well aware of the entrenched disagreement that characterizes their collective deliberative processes, should be able to distinguish between: a. political decisions that they personally deem wrong and/or unjustifiable but that they acknowledge as being among the set of decisions that can plausibly be legitimated through a public process of justification and b. political decisions that cannot be considered as valid by any member of the constituency, regardless of whether they might result procedurally legitimate  – I am thinking here of possible majoritarian decisions that deny equal treatment to some members of society, therefore illegitimately discriminating against them.6

 “Some proposals are not merely unjust in the eyes of some reasonable citizens, some proposals must be seen as unjust by all reasonable citizens since they are not grounded in any political values, or they do not represent a plausible balance of political values. These policies are unjust and illegitimate. Policies, for example, which deny basic political, religious, or sexual rights to a certain class of citizens cannot be plausibly justified by reference to the values of freedom, equality, or fairness, and so political liberalism rightly declares such policies to be illegitimate regardless of their procedural pedigree,” Quong (2011: 134, emphasis in original). 6

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4.1.2 Foundational and Justificatory Disagreement “What we need in order to achieve a society where citizens can publicly reason with one another about matters of justice is to identify the deep, or fundamental, values or ideas that can serve as a common framework within which liberal citizens can reasonably conduct disputes about justice” (Quong, 2011: 185). According to Quong, any justificatory strategy that tries to build up stable agreement for liberalism starting from unrestrained disagreement is condemned to failure. He defends a version of political liberalism whose justification is grounded in stringent normative arguments that rational and reasonable agents – the idealized constituency – cannot reasonably reject. Since the justificatory constituency is limited to reasonable agents, then strictly freestanding arguments prove strong enough to motivate them to fully comply with political principles.7 From the epistemic perspective, limiting the justificatory constituency to reasonable citizens, implies introducing an agential point of view that works as a filter, since all the public arguments that are not compatible with the point of view of reasonable citizens can be ruled out as irrelevant for the justification of public discourse. According to Quong, this epistemic filter plays a fundamental role, since it reduces the disagreement that justificatory processes ought to deal with to forms of justificatory disagreements instead that forms of foundational disagreements. Justificatory disagreement is a disagreement in which agents, although sharing premises and reasoning standards, end up in disagreement over the substantive conclusions of the deliberation. By contrast, a foundational disagreement is the outcome of a deliberative procedure in which agents do not share any premises or basic convictions (Quong, 2011: 204). Naturally, this second form of disagreement is almost impossible to reconcile, as the agents involved would almost certainly also disagree about the epistemic and normative standards by which the dispute might be resolved. According to Quong, the fundamental justificatory asymmetry between comprehensive doctrines and liberal theories of justice is that whereas reasonable disagreement over justice can be circumscribed to a form of justificatory disagreement, disagreement over conceptions of the good life, often if not always, implies forms of foundational disagreement. The notion of political legitimacy defended by Quong is consistent with the epistemic characterization of the virtue of reasonableness that I illustrated in the previous chapter. Indeed, reasonable citizens, assuming a general stance of intellectual modesty and fully respecting the agential autonomy of other citizens, are those able to accept the intrinsic schizophrenic dimension of a pure freestanding justification of the political conception. This means accepting the doxastic dimension of our epistemic processes and understanding that as citizens we might be requested to

 “The legitimacy of political principles does not depend on whether current liberal citizens do accept them, or whether the principles are congruent with their current beliefs. Instead principles are defined as legitimate if it is possible to present them in a way such that they could be endorsed by rational and reasonable citizens,” Quong (2011: 144, emphasis in original). 7

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accept the legitimacy of a political decision that privately, with reference to our doxastic system of beliefs, we might have good reasons to consider as a wrong decision. Reasonable citizens, sharing some normative premises and a commitment to reciprocity, might well keep disagreeing between one another, and yet it is plausible to imagine that their disagreements over public issues can be transformed into manageable forms of justificatory disagreement. This conclusion is realistic if we realize that reasonable citizens, by definition, share a loose normative conception about what justice requires. For example, according to my proposal, citizens are reasonable when they ascribe to other agents the status of free, equal moral agents and of putative epistemic authorities. Also, they interpret the collective enterprise as a system of mutual cooperation in which they have to respect reciprocity constraints. I maintain that this loose normative framework of shared normative notions and ideals constitutes the building-core of any version of liberalism.8 If we look at different liberal conceptions of justice, we can see that these conceptions, while disagreeing between one another about the best course of action or the best implementation of a specific principle, still share some core premises and general values. My thesis is that liberal conceptions of justice, in one way or another, do refer to this loose normative framework of shared normative notions and ideals, notwithstanding the specific differences among themselves.9 We can conclude that very often the main differences among liberal conceptions concern different interpretations of what these premises and values normatively entail.10 This normative framework of basic premises and liberal notions can be extrapolated from the public culture of liberal-­ democratic societies, as they have been developed, although imperfectly, within the historic processes that founded liberal democracies. To understand the role of these background liberal ideals, Rawls takes as a paradigmatic example the notion of toleration. The theoretical concept of toleration that is now part of our public political culture was historically introduced as an instrumental solution for resolving the religious wars that engulfed Europe between the sixteenth and seventeenth centuries. The substantive value of the ideal of toleration does not derive its normativity from these historic facts. However, the evolution of the theoretical concept for how we know it now partly relies on the historical facts and some normative aspects of its meaning are in a sense inherent to this history. Naturally, real-world democratic societies do not share the same history and often the normative framework of liberal ideals latent in the public culture of political societies differs contextually. Yet, it is reasonable to focus on what these public

 Rawls refers to a “loose framework for deliberation” in his Dewey Lectures (1980: 560).  Similarly, Rawls talks of the possibility that citizens reach an agreement over the same concept of justice, while they keep disagreeing about which is the best conception of justice among those derived from this concept. “Thus it seems natural to think of the concept of justice as distinct from the various conceptions of justice and as being specified by the role which these different sets of principles, these different conceptions, have in common,” Rawls (TJ: 5). 10  “A justificatory framework acts like a filter. It ensures that any values or arguments used in debate will at least be mutually acceptable, but it does not guarantee that the participants will agree on the exact weight or ranking of those values or principles,” Quong (2011: 207). 8 9

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cultures have in common, rather than highlighting the contextual differences. This normatively relevant background framework is necessarily loose for at least two reasons. First, this framework is loose as it derives, partly, from a contingent historical process. In this regard, the looseness of the framework is a necessary condition and it mirrors the evidential role played by provisional fixed points within a coherent system: revisions are always an option, as fixed points are merely provisionally justified. Second, the loose framework is extremely useful for pragmatic reasons, as for dealing with disagreement it is important to work with a theoretical framework that, although normative, is still flexible and that allows for work in progress solutions. In the next sections I shall investigate the justificatory role that this loose normative background framework can play in the overall justificatory strategy of political liberalism. Let me just add for now that the method of RE is the most adequate for granting justificatory relevance to the background framework while avoiding any risk of relativism or, conversely, of excessive conservatism in favor of the status quo. We collect such settled convictions as the belief in religious toleration and the rejection of slavery and try to organize the basic ideas and principles implicit in these convictions into a coherent political conception of justice. These convictions are provisional fixed points that it seems any reasonable conception must account for. We start, then, by looking to the public culture itself as the shared fund of implicitly recognized basic ideas and principles. We hope to formulate these ideas and principles clearly enough to be combined into a political conception of justice congenial to our most firmly held convictions. We express this by saying that a political conception of justice, to be acceptable, must accord with our considered convictions, at all levels of generality, on due reflection, or in what I have called elsewhere ‘reflective equilibrium’. (Rawls PL: 8)

4.1.3 Overlapping Consensus: The Input of the Whole Justificatory Procedure? I believe that the most important contribution provided by Quong in defending a strictly anti-perfectionist and hyper-Rawlsian version of political liberalism is to have suggested an alternative view of the overlapping consensus. Quong claims that the overlapping consensus would prove mostly useful when it is assumed to constitute the first stage of the justificatory project, rather than being imagined as the agreement reached at the stage of the full justification. Quong introduces two arguments for criticizing the common view on the overlapping consensus that I illustrated in Chap. 2. First, Quong stresses the criticisms that many important authors (Barry, 1995; Habermas, 1995; Raz, 1998) have raised against an overlapping consensus interpreted as the justificatory stage that follows the pro tanto justification. The critical argument, that Quong names the dilemma of overlapping consensus, recalls the general justificatory dilemma that I have been debating in this work. Either an overlapping consensus plays a trivial justificatory role, since all the justificatory burden is weighted on the freestanding justification; or, if an overlapping consensus is indeed relevant within the justificatory strategy, then all the chances to

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establish a full justification rest on the willingness of real citizens to find a consistency between their nonidealized systems of the beliefs and the political module (Quong, 2011: 162–166). Quong maintains that the common view of the overlapping consensus is not able to resolve this dilemma that, again, stems from the intrinsic tension between the normative and motivational aspects of political liberalism. Second, the common view of the overlapping consensus is incompatible with the ‘broad’ reading of public reason defended by Quong (2011: 258). In contrast to Rawls, but in my opinion supporting an even more Rawlsian strategy than Rawls himself, Quong maintains that the normative constraint of public reason should be employed for deliberating over any political matter whenever possible, instead of employing it only when reasoning about constitutional essentials and basic questions of justice. Against this backdrop, Quong asserts that the common view of the overlapping consensus, concentrating the deliberative efforts in establishing compatibility between specific principles of justice pro tanto justified and the comprehensive perspective of citizens, would not result motivationally adequate to offer sufficient reasons to real-world citizens. Conversely, since Quong defends a wide-­ reaching version of public reason, he proposes an alternative view of the overlapping consensus. According to this view, the subject of the overlapping consensus is not the principles of justice justified at the pro tanto stage. Rather, the overlapping consensus is a consensus over the fundamental organizing ideas latent in the public culture of liberal democracies. The principles of justice selected in the freestanding stage, instead, are simply an indirect object of the overlapping consensus. Using Rawlsian terminology, Quong observes that the organizing ideas of a well-­ ordered society and of citizens as free and equal are shared ideas latent in a liberal public culture. These organizing ideas might assume prescriptive force if, when included in the doxastic system of a subject, they prove able to motivate this subject to uphold a liberal theory of justice in order to ‘become’ the kind of citizen that would live as free and equal in a well-ordered society. Hence, Quong proposes that the overlapping consensus be interpreted as the input of the entire justificatory procedure, being the stage in which reasonable citizens deliberate over the normative validity of the loose background framework inferred from the public culture of the political society in which they live. The stage of the overlapping consensus, according to this alternative view, becomes the condition of possibility of the entire justificatory enterprise of political liberalism (Quong, 2011: 161–191).11 Not surprisingly, a justificatory procedure in which evidential relevance is attached to the historical democratic practice, as that practice reflects some fundamental normative ideas, is intrinsically coherentist. Indeed, the normativity of the loose framework of premises and organizing ideas is not assumed as a self-evident truth, rather it is derived from the evaluation of the role that this framework has been

 “I argue the overlapping consensus is thus not, despite how it is sometimes portrayed, a further test that a political conception of justice must pass in order to be fully justified. Instead, the consensus provides the initial common ground from which any attempt at public justification needs to proceed,” Quong (2011: 162). 11

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playing within the emerging democratic practice.12 These organizing ideas play an epistemic role similar to the provisional fixed points in a coherent system of beliefs that ought to evaluate the validity of a new hypothesis. Political ideas and principles are indeed partly assessed in relation to this loose normative background framework that is latent in the social context of real-world liberal democracies. These background premises and ideals play an important epistemic role within the justificatory strategy, as they provide “a loose guiding framework of moral deliberation” (Rawls, 1980: 564). According to this view, real-life citizens who are accustomed to living in a liberal society are more likely to respect this guiding framework while deliberating over political matters – sometimes even not consciously. Specifically, reasonable citizens are exactly those citizens who ascribe a normative role to this loose framework, respecting the reasoning constraints that this framework imposes on deliberative processes. According to Quong, it is misleading to depict political liberalism as a theory that is able to achieve stable agreement on a specific conception of justice without presupposing that the political constituency, by definition, attaches deliberative priority to those ideals, such as freedom, equality and fairness, that are part of the loose normative framework around which the conception of justice revolves. Then “the central aim of political liberalism, on the internal account, is to understand how liberal theory can be made internally coherent − to see how the commitment to public justification can be realized under liberal conditions” (Quong, 2011: 180). This means showing that reasonable citizens, each one starting from their own personal perspective, are able to reach a stable overlapping consensus about the compatibility of some liberal background organizing ideas with their doxastic system of beliefs. Even if members of society hold different comprehensive doctrines, the argument goes, they are able to achieve an overlapping consensus starting from their different standpoints. This presupposes that the establishment of this consensus is possible and is not too demanding, as members of the idealized constituency already share a reasonable commitment toward liberal ideals. As we have seen, the alternative view of the overlapping consensus assumes that this stage is theoretically independent from the pro tanto justification. Indeed, these two stages have a different scope. The overlapping consensus is a stage in which reasonable citizens, reasoning from their different comprehensive perspectives, agree on the normative relevance of a loose liberal background framework of premises and ideals. The pro tanto justification, instead, provides a freestanding justification for principles of justice that are outlined thanks to the device of representation (for example, the original position). By contrast, according to the common view, both the pro tanto justification and the overlapping consensus have the goal of justifying  – through the appeal to very different arguments and epistemic  “The aim of political philosophy, when it presents itself in the public culture of a democratic society, is to articulate and to make explicit those shared notions and principles thought to be already latent in common sense; or, as is often the case, if common sense is hesitant and uncertain, and doesn’t know what to think, to propose to it certain conceptions and principles congenial to its most essential convictions and historical traditions,” Rawls (1980: 518). 12

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processes  – the same political module. In confronting these two views, Quong defends the alternative view of the overlapping consensus and claims that this view achieves two very important goals: i. guaranteeing stability, for the right reasons, of the liberal political system; ii. making the internal conception of political liberalism more coherent and epistemically sound. Since, according to the alternative view, achieving an overlapping consensus over some specific organizing ideas of liberalism is the starting point of the entire justificatory structure, it follows that the next justificatory stages would be able to rely on a shared set of standards and premises, therefore avoiding unmanageable forms of foundational disagreement. In defending the alternative view, Quong opposes all the critics who have charged that Rawls’s references to a specific historical and political context and to an ongoing public culture turn the justificatory strategy of liberalism into relativism or, even worse, into a vicious form of circularity. In this work I share Quong’s attempt to defend the justificatory strategy envisaged by Rawls and, in order to do so, I have been claiming that a version of political liberalism whose epistemology is clearly spelled out rather than bracketed has a greater chance of successfully addressing these criticisms. As I showed, a coherentist paradigm of justification has a plausible strategy for responding to these concerns of flawed circularity. According to a coherentist epistemology, employing some normative ideas latent in the historical milieu of liberal societies as inputs of the justificatory strategy does not necessarily mean that we are trying to ‘rig’ the justificatory process or that we are yielding to relativism. Instead, exactly as previously validated inferences provide inductive logic with provisional fixed points to assess new hypotheses, our deliberative processes are legitimate when they at least partly rely on liberal organizing ideas that are extrapolated by the historical context of liberal societies and on whose validity reasonable citizens tend to agree upon. The stage of the overlapping consensus provides a public justification for these provisional fixed points. However, the sense in which this justification is ‘public’ derives from the fact that these background premises and ideals are shared by reasonable citizens. Yet, every member of the idealized constituency maintains this overlapping consensus starting from her own specific comprehensive perspective, therefore employing private reasons that many other citizens might privately refute as incongruent with their systems of beliefs. In order to better understand this epistemic dimension of the overlapping consensus, it is important to introduce a well-­ known distinction between consensus and convergence (D’Agostino, 1996). According to this distinction, there is a consensus on a specific principle or conception if different agents have a common reason (R) for agreeing on it.13 Otherwise, we have convergence if the same conclusion is justified, by agents, for different and independent reasons.14 According to the model I am defending, it is plausible to

 “If A and B are members of a community for which a regime S is publicly justified, then, on this reading, there must be some reason r, which A has and B has too, which is their common (consensual) reason in relation to the regime S,” D’Agostino (2009: 7–8). 14  “If S is reasonable from A’s point of view on account of r(A), then it may well be that it is reasonable from B’s point of view on account of an r(B) which is distinct from r(A),” D’Agostino (2009: 8). 13

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maintain that reasonable citizens, holding extremely different doxastic sets of belief, tend to converge on the validity of the loose normative background framework, rather than reaching a full consensual agreement on the validity of such a framework.15 Since this loose framework plays a similar role as the provisional fixed points in a coherentist model of justification, we ought to keep in mind that their epistemic relevance is only provisional and always open to possible revisions. These liberal organizing ideas extrapolated by a specific cultural context play a double epistemic role, as they constitute both a general regulative ideal for liberal societies and a criterion of guidance for the actual, nonidealized, public deliberation among citizens. Moreover, it is essential to understand that the justification in overlapping consensus of this loose framework constitutes the input of the ideal phase of the theory. Naturally, when we deal with a nonidealized constituency, we cannot presuppose from the beginning that a majority of real-life citizens will agree on the legitimacy of these organizing ideas, though we may hope so. Our goal should be to build democratic institutions that mirror these organizing ideas and to foster citizens’ ability to acknowledge their normative relevance. We ought to prove that what we can afford under ideal circumstances is not completely implausible when we deal with the unrestrained reality of conflictual, unstable, political societies. Against this backdrop, it should be clear now that one of the main goals of this work is to envisage a path for establishing deliberative and decision-making processes that adequately mirror these underlying standards and organizing ideals that can be described as the latent backbone of a common liberal framework of reasoning. Public reason, and thus liberal legitimacy, would be impossible without a fundamental stock of ideas that citizens can draw on when they deliberate with one another regarding their disagreements about justice. Because the very idea of public reason presupposes disagreement about justice (disagreements that cannot be resolved by appealing to the general liberal principles), we must look to a higher level of abstraction to find the common ground that ensures our political principles can be legitimate−that ensures that they can be justified on grounds that all reasonable people could accept. (Quong, 2011: 190)

4.2 The Background Normative Framework In the previous section I discussed the justificatory strategy defended by Jonathan Quong. Quong’s attempt to clarify how political liberalism can be made internally coherent is in my opinion successful. His analysis clarifies many aspects of Rawls’s  It is worth noting that Quong (2011: 265–273) argues against the method of convergence, since he claims that agents would not respect the sincerity requirement if converging for different, often conflicting reasons, on the same object of the agreement. I will analyze in depth the sincerity requirement in the next chapter. For now, I just want to say that the epistemic characterization of the virtue of reasonableness that I defended in the previous chapter provides us with an illustration of why it is not implausible, both epistemically and normatively, to assume that reasonable citizens can converge for very different reasons on the value of a loose liberal framework in overlapping consensus while keep being sincere with one another. 15

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political liberalism and it shows that as theorists we have to decide which version of liberalism we want to defend, whether an internal conception or an external one. In order to resolve the justificatory dilemma, Quong suggests two strategies: a. limiting the justificatory ambitions of political liberalism to an idealized constituency of reasonable (and liberal) citizens and focusing on establishing compelling justificatory arguments that defend liberalism as the political theory that an idealized constituency would stably maintain; b. accepting the challenge of unrestrained reality and attempting to justify political liberalism to a nonidealized constituency. Quong doubts that the second strategy can ever be successful. However, he maintains that, in order to be efficacious, this strategy should impose a change of heart for liberalism, requiring it to be justified in the terms of a comprehensive doctrine that can victoriously obtain priority over the private comprehensive doctrines held by citizens. As we know, Quong cannot but oppose this solution, since he strongly defends an anti-perfectionist version of political liberalism. Consequently, he defends the first strategy and underscores that the establishment of the overlapping consensus over a loose liberal framework of ideals, normative premises and evaluative standards helps supporting public deliberative processes in which citizens confront one another along the lines of justificatory forms of disagreement, rather than foundational. I mostly agree with Quong’s proposal, especially defending the alternative view of the overlapping consensus as the input of the entire justificatory paradigm. According to the internal conception, the defining feature of political liberalism is that of being a theory of justice whose background organizing ideas and ideals can be justified to a certain idealized constituency reaching a stable overlapping consensus. My goal now is to proceed a step forward, illustrating the different goals of an ideal and nonideal phase of the theory and assessing whether the agreement reached at the stage of an overlapping consensus can be helpful in establishing legitimate processes of decision-making and conflict management in the context of real-world democracies. I shall proceed by articulating the justificatory structure in two phases and distinguishing among three different standpoints with regard to the political constituency of reference. The ideal phase starts with the overlapping consensus on the normative relevance of a loose framework of organizing ideas and premises of liberalism. Concerning this justificatory stage, the correct standpoint to take into consideration – following the internal model of political liberalism – is that of an idealized constituency of reasonable members. Then, a second stage of the ideal phase consists of the freestanding philosophical argument for justifying a specific concept of justice. Here the justificatory argument still addresses members of an idealized constituency and the pro tanto stage already reflects some shared notions and standards justified in overlapping consensus. To use Rawls’s theory as a paradigmatic version of political liberalism, this means that the characterization of the parties and the outline of the device of representation of the original position would already be partly inferred from the loose normative framework justified in overlapping consensus. For example, the procedural constraints that regulate deliberation in the original position would be determined mirroring the notion of fairness and the ideal of citizens as free and equal. Naturally, the parties’ standpoint is the most

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abstract standpoint that is employed within the multi-stage procedure of justification. By contrast, within the nonideal phase, the idealizations of the first stages are abandoned in order to assess the validity of the political module in relation to the actual, unconstrained, sets of beliefs held by citizens living in real-world societies. The way in which an already justified concept of justice can result reconciled with the doxastic systems of beliefs of the members of an actual democratic constituency is the object of analysis of the nonideal theory. I have been arguing that the nonideal phase ought to engage both with reasonable and unreasonable citizens, therefore dealing with both justificatory and foundational forms of disagreement. This means that political processes may vary a lot depending on the attitude that the majority of citizens shows toward the normative standards and criteria justified in the ideal phase. As a matter of fact, not all citizens will accept the loose normative framework as a deliberative constraint when they reason over political matters. It follows that the nonideal phase of the theory is intrinsically work in progress and relies on different justificatory strategies, some more demanding and others more pragmatically oriented. Generally speaking, the ideal phase plays a fundamental heuristic role, showing us how reasonable citizens ought to reason and behave. However, once the idealizations about favorable social and historic circumstances and about agents’ epistemic and moral abilities are lifted, we are left with many conundrums to resolve. In contrast to Rawls, I suggest that nonideal theory has proper independence and establishes goals and aims that do not necessarily stem from the conclusions reached in ideal theory. As I have stressed many times, in order to resolve the justificatory dilemma of political liberalism, we ought to clearly distinguish between the justificatory tasks of the ideal and nonideal phases. The relation between the ideal and nonideal phases in a way loosely recalls the distinction introduced by Quong between an internal and an external conception of political liberalism. Ideal theory and nonideal theory introduce different instruments for satisfying both the desiderata of liberalism, and they diverge in giving priority to different ambitions of liberalism. My proposal is to try to establish a productive relation between these two phases, in order to lay out a justificatory strategy for political liberalism that is not required to pick sides between the two desiderata. In developing my model, I argue, contra Quong, that the internal conception of political liberalism, although inherently coherent and normatively sound, is never sufficient for granting legitimacy to political decisions under nonidealized circumstances. Political liberalism ought to try to establish procedures of decision-making that involve every member of the constituency qua citizen, whether they are reasonable or not. In order to properly respect the agential autonomy of citizens, we cannot discriminate between ‘good’ and ‘bad’ citizens, assuming that political liberalism can be justified solely for reasonable (and liberal) citizens. The real challenge for liberalism is to find a way to achieve workable political compromises in which a majority of citizens is involved and willing to acknowledge the legitimacy of the decisions taken. Among this majority of citizens, not all of them are going to be perfectly rational, reasonable and motivationally coherent. And for nonideal theory, this is, at the end of the day, acceptable.

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4.2.1 Coherentism and Overlapping Consensus: A Happy Liaison In order to investigate the theoretical relevance of the epistemic analysis laid out in the previous two chapters for the topics I am illustrating in this chapter, I shall assess the role that RE plays in a justificatory procedure clearly divided into an ideal and nonideal phase. First of all, it is important to underscore that the method of RE is perfectly compatible with the alternative view of the overlapping consensus defended by Quong. Indeed, the epistemic role played by the overlapping consensus is better explained when interpreted within a coherentist paradigm of justification. In the overlapping consensus different members of the idealized constituency achieve an agreement over a loose normative framework of reasoning starting from their different private perspectives. It should be clear that to reach such agreement, a coherentist procedure is employed, since every member should assess whether the loose liberal normative framework is indeed compatible with their comprehensive perspective. The flexibility of the RE method provides a plausible account of how reasonable citizens can converge on the validity of the same loosely defined concept of justice, while each one maintains a conception of justice that may differ from those maintained by others. Furthermore, the coherentist paradigm provides the method for developing a freestanding argument that, although independent, already reflects the liberal ideals and premises justified in the overlapping consensus. Assuming Rawls’s original position argument as a paradigmatic example of the freestanding stage, we can see that the device of the veil of ignorance and the characterization of parties are already determined with reference to the organizing ideas of citizens as free and equal and of a well-ordered society as a fair system of social cooperation. Without presupposing agreement on these organizing ideas, the same construction of the original position can appear too abstract to have motivational force. By contrast, a general coherentist overview establishes a justificatory structure in which the theoretical independence of the freestanding stage is maintained, and yet, the input into the freestanding argument is developed with reference to some Archimedean points on which there has been previous agreement via convergence from different comprehensive perspectives. In this regard, the role that the overlapping consensus plays in the ideal phase of the theory is to guarantee the justification of the Archimedean points around which the entire structure of justification of political liberalism will then be built on. Assuming coherentism as the general paradigm for conducting public reasoning over practical matters implies that agents’ doxastic perspectives do not necessarily function as rigidly axiomatized systems. The notion of overlapping consensus properly suggests that there is always room for each citizen to potentially revise some (or most) aspects of her private view in the search for congruence with the loose liberal normative framework. Furthermore, interpreting the overlapping consensus as a proper coherentist justification supports the view that collective reasoning is possible even in the face of entrenched disagreement. Indeed, it is exactly when disagreement is deep and widespread that we need to reason about which loose standards,

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vague premises and sketched ideals can constitute a common ground on which we can then try to build some form of collective agreement. Being the starting point of the overall justificatory strategy, the overlapping consensus is established by a procedure in which the organizing ideas and premises are under the scrutiny of an idealized constituency. Yet, it is important to underscore that starting with the Dewey Lectures (1980), Rawls has ascribed normative force to the theoretical reference to a contextual public culture, assuming that agents who are embedded in a historically established liberal context would be able to ‘see’ the relevance of the loose normative framework latent in such a political context.16 A properly coherentist reading of the overlapping consensus provides incentives for our justificatory procedure to start from the here and now of our political experiences, therefore reflecting upon which shared ideals and normative premises can be collectively inferred from the political context in which we happen to live. Indeed, individuals who already live in a liberal democratic context and who do not have compelling reasons (procedural or substantial) to contest the legitimacy of the political regime, in participating in public deliberations and in casting their ballots, show that they, at least implicitly, are familiar with and loosely supportive of the normative background framework of organizing ideas of liberalism. Naturally, this form of agreement is a loose agreement on vague concepts. Still, after the political turn, Rawls’s wager consists in assuming that we can start from this loose agreement over vague concepts and then build on it a compelling and possibly stable (for the right reasons) theory of justice.

4.2.2 Ideal Justification: Two Forms of Reflective Equilibrium Within my general paradigm, RE plays a fundamental role, as I maintain that this method is able to bridge the ideal and nonideal phases of the justificatory procedure. In order to assess the validity of this thesis, let’s analyze the role that RE method plays in the different justificatory stages of the ideal phase of the theory. • Following Quong, I have defended an interpretation of the overlapping consensus according to which this consensus constitutes the input of the whole theory

 “One practicable aim of justice as fairness is to provide an acceptable philosophical and moral basis for democratic institutions and thus to address the question of how the claims of liberty and equality are to be understood. To this end we look to the public political culture of a democratic society, and to the traditions of interpretation of its constitution and basic laws, for certain familiar ideas that can be worked up into a conception of political justice. It is assumed that citizens in a democratic society have at least an implicit understanding of these ideas as shown in everyday political discussion, in debates about the meaning and ground of constitutional rights and liberties, and the like. […] Even though such ideas are not often expressly formulated, nor their meanings clearly marked out, they may play a fundamental role in society’s political thought and in how its institutions are interpreted, for example, by courts and in historical or other texts regarded as being of enduring significance,” Rawls (2001: 5–6). 16

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of justice. According to this reading, the overlapping consensus on the underlying ideas of political liberalism (for example, the notion of citizens as free and equal and the ideal of a well-ordered society as a fair system of cooperation) is already the outcome of a RE procedure. Such organizing ideas, in fact, are extrapolated from a political context and their normativity stems from the fact that they already ‘fit’ some of our considered convictions in RE.  These Archimedean points are the raw material from which we can try to build a normatively relevant theory of justice. The way in which the organizing ideas are justified depends upon the establishment of what I call a General Wide Reflective Equilibrium in which idealized members of the constituency agree on the presumptive validity of these background ideas starting from their specific comprehensive perspectives.17 Even under idealized circumstances it is much more reasonable to expect individuals holding quite different doxastic systems of beliefs to be able to find an agreement over some underlying ideals, rather than on specific principles of justice – as instead maintained by the common view of the overlapping consensus. Every reasonable citizen, starting from her specific doxastic set of beliefs, has good reasons to agree on the validity of the loose liberal framework. This conclusion is the main implication of the alternative view of the overlapping consensus. In this regard, every citizen establishes a General WRE between her doxastic system of beliefs – made up by background theories, moral intuitions, personal preferences, etc. – and the organizing ideals of political liberalism. This form of RE is very general, since it is an agreement on a loose framework inferred from a historical context. There can be a lot of disagreement regarding the right interpretation of the political ideals embedded in a public culture. Also, there can be conflict regarding the moral and legal implications of these liberal premises and ideals. Therefore, the justificatory procedure, aware of the pervasiveness of disagreement that characterizes the intersubjective deliberative setting among reasonable agents, allows for an extensive flexibility. This means that from different historical and geographical contexts a quite wide array of intersubjective interpretations of the loose normative framework can be drawn and then justified in the overlapping consensus. In this way, even at this level of high idealization, the fact of pluralism is respected, rather than subdued. • After the overlapping consensus among the reasonable members of an idealized constituency has been reached, the freestanding argument for justifying a liberal conception of justice can be outlined. Here, the Archimedean points justified in the overlapping consensus constitute the benchmarks around which to develop the freestanding argument of justification. The Rawlsian version assumes that the pro tanto stage aims at providing a sound justification for general liberal principles of justice. This justificatory stage is articulated in the light of the idea that the principles that will result justified would represent the best expression of

17

 For a good analysis of the notion of general wide reflective equilibrium, see Scanlon (2003).

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some shared notions of fairness. I agree with this last intuition, but again, in assuming that the ideal phase of the theory has a limited scope, much more reduced than in Rawls’s PL, I argue that the object of justification of the freestanding argument is not defined political principles, but rather a normative structure for intersubjective reasoning. This framework is less vague than the loose framework of ideals and organizing ideas justified in the overlapping consensus: it establishes a set of norms and intersubjective standards that govern the process of raising and contesting political claims and moral intuitions while deliberating as a collective body. If the justification is satisfactory, reasonable citizens would then be committed to respect this framework of norms and standards when engaged in public discussions over political matters. For example, using again the Rawlsian account as paradigmatic, the normative framework for intersubjective reasoning would provide citizens with reasons to uphold a reasonableness attitude and to respect the constraints of public reason. In this regard, the structure of intersubjective reasoning justified at the pro tanto stage is established showing that these normative requirements well express the ideal of justice latent in the public culture of liberal democratic societies. The RE method is again employed here as part of an abductive process of reasoning that establishes that this normative structure of reasoning provides the best explanation of what reasonable agents assume to be the intersubjective constrains that we ought to respect if we want to act as morally sound and reasonable agents.18 In connecting the outcomes of two different justificatory stages, coherence here plays a slightly different role: the fact that the outcomes of these two different strategies are consistent provides the entire justificatory project with more evidential force. The established coherence here is not directly the rationale for believing something to be correct, rather, coherence is an evidential proof that it is sound for reasonable citizens to support the normative structure of reasoning. In fact, this normative structure represents an adequate indirect implementation of the organizing ideals shared in the overlapping consensus by an idealized constituency. The coherence achieved is a reflection of the fact that reasonable agents do have sound reasons to support the normative structure of intersubjective reasoning even when the idealizations are lifted. In this regard, coherence is a criterion of justification, not a justifying property (Sayre-McCord, 1985, 1996). The kind of RE that characterizes the pro tanto stage of the justificatory procedure is a strictly Political Reflective Equilibrium as the normative structure of reasoning is justified appealing only to freestanding reasons, instead of including in the

 With an interpretation of the role of RE similar to mine, Gaus (1996: 108) states: “Second, I have argued that principles are to be justified in terms of their explanatory power vis-a-vis our other justified beliefs. Thus reflective equilibrium is based on an abductive hypothesis about the best possible explanation of our beliefs.” 18

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process the private perspectives of citizens as well.19 The pro tanto stage provides a justification that should be valid and normatively compelling in any circumstance and for any individual. Ideally speaking, the freestanding argument, relying on strictly political arguments that are completely discontinuous with regard to citizens’ comprehensive doctrines, aims at being universalizable. In this sense, the RE reached at this stage is strictly political and is composed solely of public reasons, therefore respecting thoroughly the commitment to avoid any reference to the private perspectives maintained by citizens in their doxastic systems or to a comprehensive version of liberalism. This conclusion is adequate, since the goal of the pro tanto stage is to develop the most powerful and compelling philosophical argument in support of a normative framework of reasoning, not to deal with disagreement or to worry about the motivational impasse. In illustrating a General Wide Reflective Equilibrium and a Political Reflective Equilibrium, I have characterized only the first two stages of the complex procedure of justification of political liberalism that I have in mind. These two forms of RE are established within the ideal phase of the theory. In this phase RE plays two fundamental roles: (a) it represents a heuristic adequacy test for the whole justificatory strategy; (b) it establishes a justificatory procedure that clearly relies on an analysis of the doxastic perspectives of (idealized) agents involved in public processes for selecting, criticizing, revising political decisions.20 At the stage of overlapping consensus, RE is useful heuristically in casting a light on the normative dimension of the practice through which we, collectively, reason over some provisional organizing ideas and premises extrapolated from the public liberal culture of the political context in which we happen to live. These organizing ideas, once they are justified in WRE, vis-à-vis the doxastic sets of belief of the members of the idealized constituency, assume the epistemic role of shared considered moral judgments about what liberal justice requires. Here RE is more an individual, reiterated procedure for achieving coherence between comprehensive and political ideals. Different reasonable agents, even under ideal circumstances, would reach different equilibria starting from their different comprehensive perspectives. This is the reason why the agreement in overlapping consensus is reached through a convergence from different standpoints, therefore establishing different reflective equilibria.

 The first author to come up with an illustration of a strictly political reflective equilibrium has been Norman Daniels (1996: 149): “The criterion for full justification ultimately remains acceptability in wide reflective equilibrium, and pro tanto justification deliberately refrains from seeking such deeper justification. (I later introduce the term ‘political reflective equilibrium’ to characterize the limited results of pro tanto justification as compared to full justification.) By not seeking or alluding to deeper justification, pro tanto justification does not alienate those who have different reasons for accepting the module.” 20  Ernest Sosa (1991), for example, distinguishes between a social version of RE and the classical view of RE as a method that involves agents’ doxastic sets of beliefs in the justificatory processes. 19

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Then, the freestanding argument – that not necessarily ought to be outlined in terms of the original position – provides a compelling philosophical argument for justifying a general normative structure of intersubjective reasoning that accounts for the considered moral judgments shared by the members of the idealized constituency in the overlapping consensus. Again, a RE method is employed. However, here RE assumes the role of an adequacy test for the theory in general. The adequacy test requires that the arguments that are spelled out in the pro tanto stage, and that therefore are independently justified, ought to be congruent with the considered moral judgments shared by an idealized constituency of citizens. In cases where coherence is far from reachable (remember that different political contexts can give rise to different interpretations of the organizing ideas latent in a vague liberal public culture), the freestanding justification is not invalidated per se. Rather, a freestanding justification that fails the RE adequacy test results weaker in its action-guiding power and motivational force. In fact, it is hard to believe that a general conception of normative constraints can plausibly result compelling to real citizens when its compatibility with a loose liberal framework is doubtful even under ideal circumstances.21 Now, the ideal phase of the theory is composed by the overlapping consensus stage (according to the alternative view of this notion) and by the pro tanto stage. The outcome of the ideal phase is the justification, through a freestanding argument and the employment of a general coherentist method, of a normative structure of standards and norms for reasoning intersubjectively over political matters. This reasoning framework, if accepted, constrains collective reasoning to respect specific normative norms and standards, therefore avoiding unmanageable forms of foundational disagreement in favor of forms of justificatory disagreement. The legitimacy of this normative framework of reasoning does not stem from the actual acceptance proved by real citizens in favor of this framework. Rather, in the ideal phase this normative framework is legitimated thanks to philosophically powerful arguments that demonstrate the acceptability of this framework with regard to an idealized constituency. This means that rational and reasonable agents in an idealized position of choice have sound reasons to support this normative framework of reasoning, once it is proved that this framework satisfies justice-oriented standards and values (employed in envisaging the pro tanto stage) and that it is compatible, in RE, with a loose liberal background framework. In the ideal phase, therefore, the more relevant dimension of legitimacy is that of normative acceptability. Conversely, in the nonideal phase the priority is given to the dimension of actual acceptance. Since the  Even if my proposal ascribes a different justificatory role to the pro tanto stage than Rawls does, it seems to me that the conclusions I am defending here are in line with the general goal of the original position, to wit, selecting a conception of justice that is both soundly justified through the appeal to adequate normative arguments and that does not involve counterintuitive outcomes for a majority of individuals. The counterintuitive outcomes of utilitarianism as a general moral theory are exactly the reason why utilitarianism is not a valid option to be selected in the original position, according to Rawls. “The original position thereby serves to connect, in the most explicit possible manner, the way the members of a well-ordered society view themselves as citizens with the content of their public conception of justice,” Rawls (1980: 552). 21

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normative framework for intersubjective processes of reasoning over political matters is already justified, what becomes relevant is assessing whether actual citizens can be motivated to comply with this normative framework in the collective dimension of their lives. In fact, a political society in which no citizens accept the normative framework of reasoning, and consequently would probably also reject the commitments toward the virtue of reasonableness, is destined to turn into an illiberal environment very soon. Still, this failure of the political conception in a specific nonidealized context does not imply that the arguments developed in the ideal phase have lost their normative validity. Rather, it means that the political institutions of that specific society were not able to build up a social environment that provides citizens with good reasons to be loyal to the liberal ideals, norms and standards and to respect them when engaging in public deliberations. A sharp distinction between the goals and methodologies of the ideal and nonideal phase is indeed helpful from the diagnostic perspective as well, as it allows us to focus our energies on the stage of the justification that is malfunctioning, rather than putting under revision the whole paradigm. In concluding this chapter, I shall now illustrate the justificatory role played by the nonideal phase of the theory and laid out my proposal for a specific version of political liberalism that I call relational liberalism, since I want to emphasize the relational dimension of the processes through which citizens confront one another in order to reach some form of agreement over public policies.22

4.3 Justification Under Nonideal Circumstances Quong maintains that the full justification of an anti-perfectionist liberal conception is achieved when both the overlapping consensus and the pro tanto justification are accomplished. This conclusion is coherent with the Rawls’s thesis that the justificatory concerns are mostly exhausted in the ideal phase of the theory. Also, since the internal conception posits that political liberalism ought not to try to justify its tenets to unreasonable citizens to the same extent that it does with reasonable citizens, then Quong has less urgency to deal with the nonideal phase of the theory. By contrast, my aim in this book is to argue in favor a wide justificatory role for the nonideal phase. According to this scheme, full justification cannot be accomplished if we do not engage with the real, nonidealized, circumstances of political societies. First, once we undo any idealizations and face reality, as theorists the first question we ought to answer relates to assessing the likelihood that the demanding normative framework of reasoning justified in the ideal phase might indeed motivate real-­ world citizens. Second, we ought to work out different proposals for dealing with entrenched disagreement. This last section of this chapter deals with the first concern, whereas the second will be the focus of Chaps. 5, 6 and 7.  For a similar proposal that illustrates that several key liberal commitments (i.e. the priority of rights; equality of status; the demand for recognition) show that liberalism is, at its heart, a relational theory, see Laden (2009). 22

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4.3.1 The Nonideal Phase of the Justificatory Paradigm Against version of political liberalism that try to domesticate diversity and to moralize the exclusion of the unreasonable from the justificatory constituency, it is worth mentioning theorists of agonistic democracy. Authors as William Connolly (1995), Chantal Mouffe (2000) and James Tully (1995) has rightly, in my opinion, criticized version of political liberalism that anesthetize pluralism in the light of an alleged ability of political liberalism to overcome conflicts, insisting instead that conflict over basic principles and ideals can never be eradicated altogether from liberal-­ democratic societies. One of the main goals of this book is attempting to ‘save’ my version of political liberalism from these well-posed criticisms, accepting some of the charges that they raise against traditional accounts of liberal legitimacy. I assume that the nonideal phase of the justificatory strategy ought to reconcile relational liberalism with an unrestrained constituency and work out a justificatory strategy that is compatible with the actual circumstances of democratic settings. In order to understand whether the nonideal phase can indeed play this fundamental role, it is important to specify the goals and methodologies of this phase. For example, establishing sound philosophical arguments that idealized agents cannot reasonably reject is very different from the attempt to articulate public arguments in favor of the legitimacy of democratic decisions that illiberal and/or unreasonable citizens might as well be able to accept as valid reasons (probably, these citizens would accept the legitimacy of these decisions for reasons very different from those employed by reasonable citizens).23

 Cristina Lafont, in her Democracy without Shortcuts (2020), articulates a participatory conception of deliberative democracy that rests on an ideal of self-government that hints to some intuitions that are close to my notion of the ideal of co-authorship. Lafont defends an ecumenical interpretation of the democratic ideal of selfgovernment (2020: 17–33), with the aim of establishing a participatory model of democracy that is inclusive of democratic citizens with different views about why democracy is valuable, how it relates to other values and ideals, how to implement these values in democratic procedures, etc. Lafont’s goal is to develop an “appropriate conception of democratic participation—in particular, a conception that is both sensitive to deliberative concerns and suitable for mass democracies” (2020: 7). Lafont deliberative account gives priority to the inclusivity requirement, and I share this commitment with her. Also, she takes seriously, as much as I do, the intuitive ideal of democracy that citizens should not be subject to laws that they cannot see themselves as authors of, thus criticizing democratic legitimacy models that involve forms of unwarranted deference to others’ opinions (i.e. others identifies different subjects in different models of democratic legitimacy as, for example, the majority’s opinion, the experts’ opinion, the randomly-selected sample of citizens’ opinion, and so on). Given the emphasis we put on the notion of collectively making decision in an authorial effort of self-government, both our accounts reject too idealized models of political participation that abstract from reality and that propose “shortcuts” that aim at taming the actual participatory dimension of democracy, in favor of satisfying justificatory and deliberative concerns. As I will show in the final part of this Chap. 4, my proposal attempts to strike a balance between justificatory concerns and a general openness to nonidealized democratic participatory procedures thanks to a clear distinction between the notions of liberalism-frame and liberalism-painting and introducing the concept of reflective agreement. 23

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The stark discontinuity in goals and methodology between the ideal and nonideal phase should be remarked for two reasons. First, the independence of the ideal phase is essential: even in social contexts in which no actual members of the constituency do accept the liberal conception ideally justified, this does mean that such liberal conception is less valid.24 Indeed, the normative validity of the philosophical arguments introduced in the ideal phase does not depend upon the actual acceptance of these arguments by real agents.25 Second, as the opposite side of the same coin, it is important to stress that the legitimacy of political decisions hinges also on the possibility of providing real citizens with enough reasons to take part in the democratic game with a constructive attitude. This means that, in order to keep together the two dimensions of legitimacy, we ought to satisfactory lay out both an ideal and nonideal analysis of what does it mean to justify political principles, values and standards. Which kind of agreement can be publicly established under the nonideal circumstances of real-world democracies? Dealing with unrestrained reality implies that citizens are not perfectly rational, motivationally unbiased and, also, it is not at all assured that their intersubjective attitude would mirror the requirements of the virtue of reasonableness. Therefore, it is worth asking whether the evaluative premises and standards as well the background normative intuitions can retain any justificatory force in this context. If we can assume that a majority of real-life citizens may agree on the validity of a loose deliberative framework inferred from the background liberal intuitions justified in the ideal phase, then we can proceed in developing decision-making processes and deliberative settings whose outcomes can indeed be acknowledged as legitimate by this majority of citizens. However, under nonideal circumstances, this assumption about the ability of a majority of citizens to converge on the validity of a loose normative deliberative framework is highly debatable. Liberal theory, in the nonideal phase, should primarily face two issues. The first challenge of political liberalism under nonideal circumstances is that of establishing democratic processes of decision-making and confrontations that allow citizens to debate with one another in a public context that stimulates the transformation of unrestrained forms of disagreement in forms of reasonable disagreement. Coherently with this aim for the theory, I concluded in Chap. 3 that it is our epistemic condition as fallible agents that assures the epistemic plausibility of genuine disagreement arising between reasonable agents. Similarly to the notion of justificatory disagreement introduced by Quong, reasonable disagreement is a disagreement

 In this regard, Valentini (2009: 339) correctly claims: “The point of a theory of justice is precisely to give us a conceptual framework from within which to criticise existing agents who do not conform with it. So long as, given our best account of human motivation, it is reasonable to expect compliance, the fact of actual non-compliance tells us nothing about the adequacy of the theory itself.” 25  An account of legitimacy that gives priority to the actual acceptability of political principles by real citizens over the possibility of establishing good normative reasons in favor of the political conception risks falling into a form of justificatory populism (see Gaus, 1996: 230–233). I will illustrate this criticism by Gaus in the next chapter. 24

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that arises even between reasonable agents that share some normative and epistemic commitments. Hence, this form of disagreement is not so profound to become impossible to deal with. The second challenge concerns an important issue that might appear less relevant from the substantive perspective, but that strongly affects the attempt of outlining an efficacious political conception, namely, the risk of inconclusiveness for public reason. As we have seen in the previous chapter, under the actual epistemic circumstances, even assuming that citizens are willing to respect moral and epistemic constraints, the inconclusiveness between Ʊ and Φ is always a plausible outcome for public deliberative processes over political matters. Since we cannot rein disagreement imposing more stringent epistemic constraints (a strategy that is instead valid in the ideal phase of the theory) or by appealing to an external authority, whose opinion – independent from the doxastic perspectives of the members of the constituency  – can help overcome the stalemate, we need to reduce the overall ambitions of the nonideal phase of the model. I maintain that under nonideal circumstances, through the actions of political institutions and thanks to exchanges of reasons and opinions among citizens, the first goal of a justificatory strategy is that of reaffirming the normative relevance of a deliberative framework that respects the epistemic and normative constrains mirrored by the virtue of reasonableness and by a loose account of liberal ideals and premises. If we are successful, then it is plausible to imagine that citizens, even while keep disagreeing, would be able to overcome inconclusiveness most of the time, assuming a meta-agreement on the rules that should regulate public forms of disagreement and adjudicate conflicts. Since the nonideal phase deals with existing political institutions and individuals that are already members of democratic societies, the general scope of this phase is not that of providing a full-fledge justification for a political conception built from scratch, rather it problematizes the issue of political legitimacy from a normative perspective. In doing so, the nonideal phase has two goals: i. putting in place justificatory processes to legitimate political decisions to the widest possible constituency of real citizens (criterion of liberal inclusivity); ii. trying to establish a workable (for the specific political community of reference) public justification of a specific interpretation of the normative intuitions, standards and ideals that constitute the loose background framework of political liberalism (criterium of shared standards).

4.3.2 Sharing a Normative Framework: The Notion of Reflective Agreement My goal in this section is to define a workable practice of public deliberation through which infers political processes of confrontation and democratic decisions that can result satisfactory for a majority of citizens. Again, I claim that this workable public practice of deliberation can be built by reasoning from a perspective that highlights the relevance of coherentism as the best justificatory method available to us for

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reasoning over political matters. Specifically, I want to introduce a new notion, reflective agreement, that I take to be the corresponding notion of RE for the nonideal phase of the theory. Reflective agreement (henceforth RA) stresses the possibility of achieving public agreement on a normative framework thanks to a public deliberative procedure. RA is an agreement that actual citizens might reach over the validity of a specific interpretation of the sets of premises, standards, ideals and goals that are extrapolated from the normative background framework justified in the ideal phase thanks to philosophically sound arguments. While reflective equilibrium can be viewed as a personal attempt, by different citizens, to justify principles of justice in the light of other various beliefs they have, reflective agreement is more a work in progress public procedure for articulating rules of conduct that can be established and upon which citizens can agree despite their deep disagreement and the constant risk of inconclusiveness. Naturally, it is not possible to establish a priori which interpretation of the loose normative framework different political societies can establish. The actual interpretation is determined by the ongoing democratic practice contextually defined. For example, reasoning from the same cluster of organizing ideals and liberal premises, different historical processes have given birth to democratic societies that can be defined as primarily libertarian, whereas others are closer to the ideal of a social democracy. Also, different political communities can assume different levels of perfectionism with regard to their support for liberal building blocks. Some political communities might show a closer adhesion to liberal ideals, therefore assuming them as closer to comprehensive ideals compatible with their doxastic systems of beliefs. Other societies, instead, may only reach an unstable agreement over the pragmatic relevance of these ideals. Indeed, the kind of RA publicly established depends on the different social contexts and on actual public deliberative processes put in place by real-life citizens and political institutions. Furthermore, it is important to stress that RA is not necessarily established by referring simply to moral reasons. Rather, prudential and strategic reasons play an important role when we are dealing with a nonidealized constituency. Indeed, the motivational set of real-world citizens includes interests, preferences and beliefs that are very distant from the idealized motivational set presupposed by the ideal theory. Even though an equilibrium is not a feasible expectation in the nonideal stage of theory, I hold that an agreement can be reached – and that this agreement can actually be realized in the ongoing practice of liberal democracies. I refer to this agreement as reflective for two reasons: i. even if in the nonideal phase no idealizations are available, it is important to remember that the actual epistemic circumstances of our intersubjective life imposes on us some epistemic and normative constraints; ii. deliberative practices and democratic decision-making processes are legitimate if and only if they do fully respect the agential autonomy of agents. It follows that in a functioning democratic system, political equality, as a non-instrumental value, should be mirrored in political institutions that fairly distribute the power of impacting political choices to every member of the constituency. This means that the political procedures of decision-making and the institutional setting should instantiate the ideal of citizens as co-authors who share both practical and epistemic authority. A

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legitimate democratic system should get rid of any form of political discrimination impairing the ability of citizens to be heard and, in a way, to see themselves as co-­ authors of political decisions (remember, this also holds for decisions that citizens do not agree with). My suggestion here is that if we get to the point where a majority of citizens reach a reflective agreement on the validity of a set of liberal premises, norms and evaluative standards, then the chances that we can amend our political institutions and social environment to get closer to the liberal ideal are far higher. In order to fully grasp the justificatory weight of RA, it is important to understand the thematical connection between this stage and the previous ones, those justified through the appeal to ideal arguments and abstractions from reality. Partly following Rawls, I posit that the ideal stage plays a heuristic role, since the conclusions reached in the ideal phase represent a regulative ideal we should try to tend toward. Similarly to the device of representation of the original position, the ideal phase in my model spells out which beliefs on justice would be justified as legitimate in a deliberative context in which all agents are reasonable. In other words, an actual agent who wants to act as a reasonable agent would act should accept the validity of the normative framework of reasoning, therefore complying with the liberal premises, norms and standards justified in the ideal phase.26 Hence, the analysis of what-our-beliefs-on-justice-would-be-when-reasonableness-is-imposed provided by the ideal phase of the theory proves relevant for setting actual deliberative procedures in place. As a matter of fact, we know that if we want to act as reasonable citizens, then we must deliberate on political matters respecting the premises, norms and ideals inferred through the latent normative liberal background. According to this proposal, RA constitutes an attempt at resolving the asymmetry between what citizens would agree on starting from their actual doxastic systems and what they could agree on if they were to respect reasonableness constraints. In the real-world, we cannot assume that citizens would indeed stick with a reasonableness attitude  – as we can assume instead when dealing with the overlapping consensus stage  – rather we might try to achieve an agreement on a normative framework starting from a contextual analysis. How do we get to the point where a majority of real-life citizens do indeed want to act as reasonable citizens would act? We should remember that we are not building our political society from scratch. Rather, all our reasoning on politics and liberal theory starts from the here and now of our lives already embedded within a specific political community. This can indeed be detrimental to the chances of getting closer to the ideal of justice – since it is very costly and takes time to amend what is wrong in political institutions and practices. Paradigmatically, as we shall

 A similar argument is introduced by Rawls (1997: 797) in arguing that citizens, when debating over public issues, should restrain their reasoning respecting the normative and epistemic constraints imposed on justices: “Recall that public reason sees the office of citizen with its duty of civility as analogous to that of judge with its duty of deciding cases. Just as judges are to decide cases by legal grounds of precedent, recognized canons of statutory interpretation, and other relevant grounds, so citizens are to reason by public reason and to be guided by the criterion of reciprocity, whenever constitutional essentials and matters of basic justice are at stake.” 26

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see in Chap. 6, systemic forms of injustice that are entrenched in our political settings are very hard to identify and then fight against. However, the fact that we are all already politically situated can also constitute an advantage. As a matter of fact, democratic regimes, although imperfect, are a quite stable default option for liberal societies. Coexistence in a democratic setting, even though it does not necessarily guarantee that political decisions are supported for the right justice-oriented reasons, still structures our collective reasoning in respecting some procedural constraints and deliberative schemes that are at least vaguely normatively featured. Sebastiano Maffettone (2010: 21–24; 222–228) has developed an interesting proposal that starts from the contextual evaluation of the ongoing institutional practice. According to this proposal, already established democratic institutions can play an indirect normative role in justifying the loose liberal background framework in the nonideal phase of the theory. Maffettone argues that the legitimacy of the background liberal notions can be assured appealing to a practice-dependent procedure of justification.27 A practice-dependent justification looks at the ongoing democratic practice in which actual citizens, although not perfectly reasonable, tend to acknowledge, some citizens in a conscious manner, some others maybe just for acquiescence, an intrinsic validity to the democratic practice per se. According to this proposal, if citizens are living in an institutional framework and accept it de facto, trying to improve it through public processes of decision-making and contestations (and naturally casting their ballots), the contextual reference to this ongoing democratic practice provides a sort of bottom-up legitimation for the liberal background framework. A bottom-up process of legitimation starts from the here and now of the specific democratic institutional context of a political society and shows that citizens who take part in the democratic game are embedded in an institutional framework that already loosely reflects the organizing ideas and norms of a liberal conception of justice. This bottom-up process of legitimation provides a minimal justification for the organizing ideals that characterize a liberal public culture. While we can have different and conflicting reasons for defending our own favorite version of a political conception for ruling the political community, the bottom-up legitimation is a sort of contextual agreement that stems from the democratic ongoing practice in which we are all engaged.28 This contextual form of legitimation is indeed powerful in underscoring that citizens, notwithstanding deep conflicts and  “Practice-dependence Thesis: The content, scope, and justification of a conception of justice depends on the structure and form of the practices that the conception is intended to govern,” Sangiovanni (2008: 138). 28  A good theoretical example of a normative justification inferred from an analysis of the institutional practice already in place can be found in strictly political accounts of the theory of human rights. According to this view, it is the public practice of human rights, historically and contextually formed, that is the source of validity and authority for the human rights doctrine. The ultimate normative meaning of this doctrine is intrinsically linked to the social and institutional practice established with the Universal Declaration of Human Rights of 1948. Many authors, although defending different standpoints, have underscored the normative value that stems from the assessment of actual institutional practices of human rights. See, Aaron (2005); Beitz (2001, 2003, 2009); Ronzoni (2009); Sangiovanni (2007, 2008) and Valentini (2012). 27

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self-regarding interests, can infer, from the institutional context and from the ongoing democratic practice, sufficient reasons for establishing a RA over the validity of a loose liberal framework.29 Building on it, we can construct the thesis that the existence of a just basic structure cannot depend exclusively on a theoretical justification. It must depend also on a successful model of institutional interaction. Only this kind of legitimation permits the construction of a durable consent, even if the support of some theoretical justification was to be taken for granted. In practice, only a quasi-empirical notion of legitimation potentially unifies the structural pluralism of justifications under a coherent vision of justice. (Maffettone, 2010: 23)

Rawls himself speaks of the normative value of the political capital of liberal societies.30 This political capital is composed of liberal values and norms as well as historically established and no longer contested principles around which our contemporary democratic societies have been built. As a matter of fact, citizens that live in contemporary democratic regimes usually no longer put in question the validity of certain principles, such as the inadmissibility in any circumstances of slavery or the legitimacy of the universal suffrage. These historically established principles, whose public legitimacy is in some sense assumed as a ‘default option’, constitute society’s political capital in democratic regimes.31 They are part of the coherent web of Archimedean points that constitutes the loose liberal framework that reasonable citizens agree upon. To conclude, the validity of the loose normative framework of liberalism can be partly legitimated through the contextual reference to “the fact that liberal democracy is, in our age, a (relatively) successful practice” (Maffettone, 2010: 23). I claim that in the nonideal phase of the theory we should try to establish whether it is plausible to expect a majority of real-life citizens to be able (and willing) to agree on a RA, everyone starting from her own doxastic perspective and motivational set. This RA, when supported by a majority of citizens, grants the  I maintain that this practice-dependent form of bottom-up legitimation defended by Maffettone is the best way to account for the contextual turn in the Rawlsian paradigm. 30  “The term capital is appropriate in this connection because these virtues are built up slowly over time and depend not only on existing political and social institutions (themselves slowly built up), but also on citizens’ experience as a whole and their knowledge of the past. Again, like capital, these virtues depreciate, as it were, and must be constantly renewed by being reaffirmed and acted from in the present,” Rawls (PL: 157, footnote n. 23, emphasis in original). 31  In the last chapter of this work, I will illustrate a concrete example of a political compromise that can be supported by sound reasons of justice. Specifically, I will look at the legal fight that has been conducted for the extension of marriage rights to same-sex couple in many western countries and to the establishment of the legal institution of civil unions in Italy. We reached these two conclusions (in Italy the fight for marriage equality is not over yet) after harsh debates, political conflicts and never-ending public controversies. And yet it is plausible to hope that in 50 years from now the notion of equal marriage will be assumed as the default option, without any public conflict over the fact that the right to marry ought to be granted to every citizen, regardless of sexual orientation. Reaching this default-dimension would mean that marriage equality will have become a liberal tenet, assuming the epistemic status of a provisional fixed point in the complex web of beliefs that constitutes a loose normative liberal framework. 29

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establishment of a deliberative setting in which citizens tend to address one another meeting normative constraints, therefore providing further procedural support in favor of the overall legitimacy of the system. In this regard, RA does not aim to achieve an agreement over a specific conception of justice, but rather aims at establishing a normatively characterized deliberative framework that constitutes the condition of possibility for reaching stable agreements among real-world citizens upon specific rules and principles within highly conflictual contexts. The point here is that a democratic regime, thanks to actual institutional practice, should prove able to motivate actual citizens to establish a meta-agreement on the validity of a justificatory framework. The idea is that actual citizens, when called on to deliberate over political matters, should be able to converge on an antecedent meta-agreement over the correct evaluative framework for assessing the validity of every proposal introduced into the deliberation.32 The ideal phase of the theory has established what reasonable people could accept as a legitimated concept of justice. Now these conclusions work as a filter, imposing normative limits to the agreement that actual citizens can reach in a stable RA over a workable justificatory framework. Thereafter, we build up the expectation that actual citizens would consider this regulative set of epistemic and normative premises and requirements as action and reasoning guiding when publicly debating over political matters.33 The practice of RA, realistically, opens up political deliberation to personal motivations other than moral reasons. In order to be consistent with the actual phenomenology of political exchanges, we know for a fact that individuals employ strategic and pragmatic reasons when debating in collective settings. Moreover, it is important to highlight that, looking at actual political interactions among citizens and between citizens and institutions, reasonableness is a virtue that agents hold in  Articulating the possibility of building up a negotiating agreement that is both efficient and that produces wise outcomes, Fisher et al. (2011: 10–11) argue that successful negotiations involve not just the level of substances, but also the level of establishing the procedures for dealing with substances. “This second negotiation is a game about a game – a ‘meta-game’. Each move you make within a negotiation is not only a move that deals with rent, salary, or other substantive questions; it also helps structure the rules of the game you are playing. […] Whether consciously or not, you are negotiating procedural rules with every move you make, even if those moves appear exclusively concerned with substance.” 33  My conclusion is similar, even though justified with a very different strategy, with the notion of “justification-by-constitution” introduced by Frank Michelman (2018, 2019). Anchoring his approach in a solid version of democratic constitutionalism (see also Ackerman, 1991), Michelman argues that citizens ought to restrain their reasoning over public matters to a constitutional framework that is partly justified by referring to the ongoing institutional practice. He maintains that a moral project for an ethos of reciprocity can be sustained thanks to a specific historical-cultural milieux. “We would be engaged there in substantial constructive work. We, each of us, connect the dots in the aggregate mass of the ‘what happens’ into shadow-normative patterns and principles. We extrapolate major, implicit, normative leanings and trend lines. We make some kind of start, at least, toward cooking the raw data into a shadow-normative political theory. We will each be as Ronald Dworkin’s Judge Hercules (only the shadow-normative system we thus rationally reconstruct won’t be confined to law). Of course, there will be plenty of room both for choice among more-or-less plausible constructions and for differing assessments of this or that construction’s meeting (or not) the acceptability test of the liberal principle of legitimacy,” Michelman (2018: 391). 32

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different degrees and the very same individual can prove to be perfectly reasonable on some issues and unreasonable on some others. It should be clear that when we are ready to theoretically engage with reality, we have to let go of the neat definitions and perfect procedures envisaged by the ideal theory. I therefore introduce this notion of RA, that I believe is more adequate to deal with the unrestrained tensions and complexities of real-world democracies. This method looks for agreement among citizens without specifying more precisely whether this agreement should be reached through consensus, convergence or maybe through an unstable modus vivendi. Indeed, the reasons in support of this agreement can vastly vary from one social context to another and can never be determined once for all. However, this agreement is a reflective one, as it depends upon the attempt by citizens to find congruence between their doxastic systems of beliefs and a normative justificatory framework. RA represents a justificatory stage in which three perspectives are deployed: (i) the public standpoint in which citizens exchange reasons and fight to have their perspective winning over other options (intersubjective horizontal relations); (ii) then there is the role played by political institutions in addressing citizens’ requests and criticism (political vertical relations); (iii) Finally, it is important to investigate the agential perspective of citizens (doxastic point of view). When the public processes of RA are mostly successful, then democratic settings have more chances to produce political decisions that a majority of citizens would deem legitimate. As we shall see in Chap. 6, I maintain that under nonideal circumstances the most plausible outcome for democratic decision-making processes is political compromise. Against this background, I will argue that political compromises can be principled, therefore respecting a set of normative premises and regulating ideals, exactly because citizen have preventively agreed in RA on the validity of the loose liberal background framework. RA is hence a fundamental tool for granting two of the main goals of the relational version of political liberalism that I defend in this work: managing disagreement while respecting the autonomy of the agents involved in deliberative processes and avoiding as much as possible inconclusive public reasoning over political matters.

4.3.3 Liberalism-Frame and Liberalism-Painting: How to Give Priority to Democratic Participation In a representative democracy, voting is not simply a way to select deliberative bodies but is an educative experience insofar as it encourages ordinary citizens to think in terms of justice and the common good. Responsive and deliberative procedures that require all citizens to register judgments, if not directly on issues, then on the representatives, encourage all to engage in public debate. (Gaus, 1996: 236)

With this sentence, I believe, Gerald Gaus wants to stress that the legitimacy of a liberal regime is not just an issue of procedural pedigree, but rather hinges on a plausible interpretation of what justice requires and on the possibility that citizens,

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reasoning together, can end up supporting the same background normative framework. I have arguing that RA is the coherentist method through which citizens can establish collective reasonable interpretations of what political liberalism requires in order to have just democratic societies. RA, in contrast to RE, is not a defined method; it expresses a regulative ideal concerning how a deliberative structure can be built up in the nonideal phase of a theory of justice. The paradigm of RA delegates to each citizen the task of finding a consistent way for including some background beliefs about a normative framework of public deliberation within her doxastic system of beliefs. If RA assumes the form of a wide-spread contextual agreement over the validity of evaluative public standards of reasoning, then establishing deliberative processes and democratic decision-making procedures that respect the constraint of public reason becomes at least plausible. As we saw, in order for disagreement to be in any way manageable, whereas respecting the agential autonomy of every member of the constituency, political deliberations and processes of decision-making should be structured to reflect the set of normative constraints, liberal premises and evaluative standards ideally justified in overlapping consensus. When political decisions are reached through processes that respect this shared (by a majority of citizens) justificatory framework, this means that all reasonable citizens would have sufficient reasons to accept the legitimacy of these political decisions, notwithstanding the fact that for some of them they might be wrong decisions or, more mildly, not the best option among their preferences. It is important to recall that in the ordinary practice of politics, democratic decisions are often the result of complex negotiation processes in which citizens are to be heard and taken into consideration, granted that they are willing to respect the institutional and legal framework that constitutes the basic ground of liberal democracies. Therefore, what is relevant from the political perspective is citizens’ willingness to accept the cooperative scheme and politically respect the equal footing of any other member of the constituency. Naturally, there can be instances of philosophical unreasonableness so wide as to prevent the holders of such doctrines to be able to be in any way politically reasonable (for example, a defender of institutional racism).34 In these instances, we can speak of non-liberal and unreasonable (both politically and philosophically) members of society and in such cases containment and toleration (in cases where no violence and harm to others are involved) are the only solutions available. One point that I think it is important to stress is that, under nonideal circumstances, the only way for dealing with entrenched disagreement while respecting the agential autonomy of citizens is to translate the justificatory problem into a more tractable deliberative one. Political deliberations favor liberal ideals when they are structured in a way that mirrors a normative framework for public reasoning. Reasonable citizens are able to respect these normative constraints and to accept  It is important to specify that there are some comprehensive doctrines that are intrinsically anti-­ liberal, such as ‘scientific’ racism. In these instances, it is likely that a citizen holding such a comprehensive doctrine cannot consistently maintain it while proving able to act with a reasonable attitude toward others in the public domain. 34

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sharing epistemic authority over collective decisions with their fellow citizens. Daily democratic deliberations are not focused on the articulation of a general conception of justice; rather they have as their object specific political decisions, or the justification of middle-level social norms and standards. Also, democratic deliberation is not an ‘all or nothing’ practice. Different trade-offs are possible and, as we have seen, the determination of reasonable citizens from unreasonable is blurred in the nonideal stage. Consequently, even when public reason justifies a general normative framework of reasoning; still the outcomes of democratic deliberation cannot be determined in advance. When dealing with nonideal circumstances, the actual willingness of citizens to accept a normative framework of evaluative standards cannot be taken for granted. The possibility of increasing the number of citizens who accept, in RA, the normative framework of loose liberal ideals and evaluative standards and who, consequently, are able to deliberate over political matters respecting this normative framework of reasoning, cannot rely, as I have argued, exclusively on theoretical arguments provided in the ideal stage of the theory. Rather, it mostly depends on the ordinary practice of public discussions and confrontations and on the democratic institutions’ ability to foster the democratic attitude of citizens.35 In other words, a democratic institutionalized regime might promote the realization of RA thanks to the educative role played by democratic institutions and by showing that public deliberations structured on mirroring this normative framework of reasoning tend to achieve better results.36 To conclude this chapter, I think it is useful to recall the metaphor of liberalism-­ frame and liberalism-painting introduced to illustrate the justificatory division of labor between the ideal and the nonideal phase of the theory. The liberalism-frame stands for the loose normative framework justified in the ideal stage of the theory. This loose framework is inferred from the liberal organizing ideas (the Archimedean fixed points) that are justified in the overlapping consensus reached by the idealized constituency. This liberalism-frame provides the structure, the frame, around which real-life citizens and political institutions can then engage in building a stable liberal democratic society. In this sense, it is not possible to establish in advance what exact content the painting will have, as a vast array of liberalism-paintings may be justifiable and therefore result legitimate for a specific political community. However, any  An interesting proposal is developed by Alessandro Ferrara in his The Democratic Horizon. Hyperpluralism and the Renewal of Political Liberalism (2014). Ferrara defends a view according to which we can successfully deal with hyperpluralism is we collectively manage to establish the ideal of democracy as an ethos. Democratic procedures would then be developed on this ethos and they would provide procedures to adequately domesticate hyperpluralism toward more manageable forms of reflexive pluralism. Consistently with Rawls’s proposal and my own reading of the bottom-up process of legitimation, Ferrara maintains that this democratic ethos ought to be intended as a historical product connected with singular developmental contingencies. 36  “Thus, the account of justice as fairness connects the desire to realize a political ideal of citizenship with citizens’ two moral powers and their normal capacities, as these are educated to that ideal by the public culture and its historical traditions of interpretation. This illustrates the wide role of a political conception as educator,” Rawls (PL: 85–86). 35

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Fig. 4.1  The structure of justification of relational liberalism

plausible liberalism-painting will be constrained by the normative frame. Following this metaphor, RA would be the method that attempts to grant the public legitimacy of the liberal normative frame even when, under nonideal circumstances, the appeal to strongly idealized philosophical arguments proves less efficacious and motivationally moot. From this it follows that even though at the nonideal level the theoretical and practical tools that the theory of justice can employ for dealing with actual disagreement are different from those available in the ideal stage, still it is plausible to claim that even nonideal justificatory and deliberative processes can appeal to the loose liberal justificatory framework as guidance for normative reasoning. The main goal of this chapter has been to show that the complex justificatory paradigm I defend, assuming coherentism as the most plausible epistemic model for practical reasoning, is able to satisfy both the desiderata of political liberalism (that is, the philosophical-normative desideratum and the realist one) and to guarantee legitimacy to political decisions in the face of entrenched disagreement. Specifically, Fig. 4.1 illustrates my proposal for the justificatory structure of a relational version of political liberalism. It is again an upside-down pyramid, in order to stress the intrinsic vagueness and work in progress characterization of actual democratic and deliberative practices under nonideal circumstances. The ideal stage is well-­ represented by the tip of the pyramid, since the justificatory role of this phase is normatively relevant but at the end of the day thinner than in Rawls’s account. The stage of the overlapping consensus is imagined as the starting point of the overall procedure, providing the normative input for then laying out the pro tanto argument. The nonideal phase, instead, is far wider and features all the daily exchanges we have as citizens of a political community. In this phase, as I underscored in this section, ongoing democratic practices and the way in which political principles have been established historically play a normative role as part of a contextual bottom-up process of legitimation.

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References Aaron, J. (2005). Constructing justice for existing practice: Rawls and the status Quo. Philosophy & Public Affairs, 33(3), 281–316. Ackerman, B. (1991). We the people, vol. I, foundations. Harvard University Press. Barry, B. (1995). John Rawls and the search for stability. Ethics, 105(4), 874–915. Beitz, C. (2001). Human rights as a common concern. American Political Science Review, 95(2), 269–282. Beitz, C. (2003). What human rights mean. Daedalus, 132(1), 36–46. Beitz, C. (2009). The idea of human rights. Oxford University Press. Connolly, W. (1995). The ethos of pluralization. University of Minnesota Press. D’Agostino, F. (1996). Free public reason: Making it up as we go. Oxford University Press. D’Agostino, F. (2009). Public justification. Stanford Encyclopedia of Philosophy, 1–14. Daniels, N. (1996). Justice and justification. The reflective equilibrium in theory and practice. Cambridge University Press. Ferrara, A. (2014). The democratic horizon. Hyperpluralism and the renewal of political liberalism. Cambridge University Press. Fisher, R., Ury, W., & Patton, B. (Eds.). (2011). Getting to yes: Negotiating agreement without giving in. Penguin Books. Gaus, G. F. (1996). Justificatory liberalism: An essay on epistemology and political theory. Oxford University Press. Gaus, G. F. (2011). The order of public reason. Cambridge University Press. Habermas, J. (1995). Reconciliation through the public use of reason: Remarks on John Rawls’s political liberalism. The Journal of Philosophy, 92(3), 109–131. Laden, A.  S. (2009). Relational liberalism and demands for equality, recognition, and group rights. In T. Christiano & J. Christman (Eds.), Contemporary debates in political philosophy (pp. 345–361). Blackwell. Lafont, C. (2020). Democracy without shortcuts. A participatory conception of deliberative democracy. Oxford University Press. Maffettone, S. (2010). Rawls: An introduction. Polity Press. Michelman, F.  I. (2018). ‘Constitution (written or unwritten)’: Legitimacy and legality in the thought of John Rawls. Ratio Juris, 31(4), 379–395. Michelman, F.  I. (2019). Political-liberal legitimacy and the question of judicial restraint. Jus Cogens, 1, 59–75. Mouffe, C. (2000). The democratic paradox. Verso. Quong, J. (2011). Liberalism without perfection. Oxford University Press. Rawls, J. (1999). The law of peoples. Harvard University Press. Rawls, J. (1980). Kantian constructivism in moral theory. The Journal of Philosophy, 77(9), 515–572. Rawls, J. (1987). The idea of an overlapping consensus. Oxford Journal of Legal Studies, 7(1), 1–25. Rawls, J. (1997). The idea of public reason revisited. The University of Chicago Law Review, 64(3), 765–807. Rawls, J. (2001). Justice as fairness: A restatement. Belknap Press of Harvard. Raz, J. (1998). Disagreement in politics. American Journal of Jurisprudence, 43(1), 25–52. Richardson, H. S. (2009). Moral reasoning. In Stanford Encyclopedia of Philosophy (pp. 1–48), http://plato.stanford.edu/archives/spr2009/entries/reasoning-­moral/. Ronzoni, M. (2009). The global order: A case of background injustice? A practice-dependent account. Philosophy & Public Affairs, 37(3), 229–256. Sangiovanni, A. (2007). Global justice, reciprocity, and the state. Philosophy & Public Affairs, 35(1), 3–39. Sangiovanni, A. (2008). Justice and the priority of politics to morality. Journal of Political Philosophy, 16(2), 137–164.

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Sayre-McCord, G. (1985). Coherence and models for moral theorizing. Pacific Philosophical Quarterly, 66(1–2), 170–190. Sayre-McCord, G. (1996). Coherentist epistemology and moral theory. In W. Sinnott-Armstrong & M. Timmons (Eds.), Moral knowledge? New readings in moral epistemology (pp. 137–189). Oxford University Press. Scanlon, T. (2003). Rawls on justification. In S.  Freeman (Ed.), The Cambridge companion to Rawls (pp. 139–167). Cambridge University Press. Simmons, A. J. (1999). Justification and legitimacy. Ethics, 109(4), 739–771. Sosa, E. (1991). Equilibrium in coherence?. In Knowledge in perspective. Cambridge University Press, (pp. 257–269). Tully, J. (1995). Strange multiplicity: Constitutionalism in an age of diversity. Cambridge University Press. Valentini, L. (2009). On the apparent dilemma of ideal theory. The Journal of Political Philosophy, 17(3), 332–355. Valentini, L. (2012). In what sense are human rights political? A preliminary exploration. Political Studies, 60(1), 180–194.

Chapter 5

The Ideal of Public Justification Revisited

Equal right of each to be treated only with justification. Hadley Arkes (1986: 70) Public justification should be a never-ending commitment. It would be sheer hubris to think that we have, or ever will have, the whole political truth. We are always learning and confronting new circumstances; we will always have progress to make. Stephen Macedo (1990b: 287)

Abstract  The main goal of this chapter is investigating the role that public reason can play within the justificatory paradigm that I defend in this work. Public reason is the notion, within the Rawlsian paradigm, that connects the justificatory enterprise with the less defined and always changing deliberative aspects of political decision-making processes. The practice of public reason requires that citizens, when discussing political matters, respect the constraints imposed by the loose normative framework of deliberation and by the ideal of equal respect and, therefore, do not address other citizens with reasons that they know are inadmissible for the other party. Along these lines there are two main topics I want to address in this chapter: i. investigating whether the deliberative constraints imposed by the idea of public reason are in fact compatible with the liberal ideal of inclusivity; ii. clarify if and in what way the requirement of public reason can be satisfied in order to guarantee the legitimacy of coercive acts. To address these topics, in this chapter I first introduce Rawls’s analysis of public reason reinterpreting this debate along the lines of the epistemic framework that I have been outlining in this book. Then, in part 2, I introduce Steven Wall’s illustration of why the public justification principle cannot satisfy the reflexivity requirement, namely, that a theory of public justification should itself be publicly justified. Finally, in part 3, I discuss Gerald Gaus’s proposal for a justificatory version of liberalism. Keywords  Public reason · Duty of civility · Sincerity requirement · Justificatory liberalism · Adjudicating function of public reason © Springer Nature Switzerland AG 2023 F. Liveriero, Relational Liberalism, Philosophy and Politics - Critical Explorations 24, https://doi.org/10.1007/978-3-031-22743-1_5

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In the previous chapter I criticized some aspects of Rawls’s paradigm and I proposed instead a political legitimacy model in which the justificatory roles of an ideal and a nonideal phase are clearly distinguished. The justificatory strategy that I support relies upon the alternative view of the overlapping consensus defended by Quong and focuses on proving that real-world citizens are able to converge on the validity of a loose normative framework of evaluative standards and organizing ideas extrapolated from ongoing democratic practices. I also argued that not all the elements of a theory of liberal legitimacy ought to be justified according to the same standard of proof. That is, I assume that the liberal normative background framework ought to be justified more compellingly, involving philosophical-normative arguments that establish the ideal acceptability of such a framework. By contrast, ordinary democratic decisions can be justified without requiring stringent agreement by an ideal constituency on the validity of these decisions. Once political procedures, decision-making strategies and the institutional setting are publicly set and meet the normative framework requirements, then single democratic decisions are justified referring to deliberative settings, parliamentary processes, elections, that is, the everyday practice of democracy in its most ordinary meaning. The object of this chapter is, then, investigating the role that public reason can play in the paradigm that I defend in this work. Since the nonideal phase in which members of the polity confront one another and make decisions within real-world democracies is less determined by the upshots of the ideal phase than in the Rawlsian model, then it remains to evaluate whether real-world citizens are ever able to respect the constraints imposed by the idea of public reason (on this I agree with Habermas that the ideal phase cannot pre-determine too much the decisions taken by ordinary citizens in daily interactions). Public reason is the notion, within the Rawlsian paradigm, that connects the justificatory enterprise with the less defined and always changing deliberative aspects of political decision-making processes. It is important to recall that the three justificatory stages envisaged by Rawls include the public justification stage, in which citizens, already convinced by the viability and legitimacy of the political conception thanks to the achievement of the overlapping consensus, are now able, at the very last stage, to address each other respecting the normative constraints of public reason, thereby abstaining from using sectarian principles and partisan arguments when publicly debating over political matters. Rawls defends a “reasonable faith” (PL: 172) in the possibility that a stable majority of (reasonable) citizens would demonstrate to be motivated in respecting the ideal of public reason when constitutional essentials and matters of basic justice are at stake. Along these lines there are two main topics I want to address in this chapter: i. investigating whether the deliberative constraints imposed by the idea of public reason are in fact compatible with the liberal ideal of inclusivity; ii. clarify if and in what way the requirement of public reason can be satisfied in order to guarantee the legitimacy of coercive acts. To address these topics, in this chapter I first introduce Rawls’s analysis of public reason reinterpreting this debate along the lines of the epistemic framework that I have been defending in this work. Then, in part 2, I introduce Steven Wall’s illustration of why the public justification principle cannot satisfy the reflexivity requirement, namely, that a theory of public justification

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should itself be publicly justified. Finally, in part 3, I discuss Gerald Gaus’s proposal for a justificatory version of liberalism.

5.1 The Notion of Public Reason 5.1.1 Public Justification and the Duty of Civility The public justification stage plays an essential normative role within the Rawlsian paradigm, since one of the regulative ideals of political liberalism is establishing public reason as the general practice of deliberation within a democratic political arena. The practice of public reason requires that citizens, when discussing political matters, meet the constraints imposed by the loose normative framework of deliberation and by the ideal of equal respect and, therefore, do not address other citizens with reasons that they know are inadmissible for the other party. When agents are able to assume the perspective of citizenry, rather than focusing solely on their private ones, they will be willing to address others with reasons that are not completely incompatible with the other party’s doxastic perspective. Remember that a reasonable citizen is an agent who can be simultaneously justified in believing both that p and that another citizen, given her own system of beliefs, is indeed doxastically justified in believing that ~p. From this conclusion – never really made explicit by Rawls in these terms – it follows that in order to establish deliberative communication between two agents who hold extremely different sets of reasons it is important to provide normative reasons in favor of public reason as the standard of public deliberation. According to this view, the public reason requirement can be spelled out in this way: a public norm (N) is publicly justified for a specific political domain if and only if every member of the political domain is provided with a sufficient reason in support of the validity of (N). This is indeed a very burdensome interpretation of the public reason requirement. Given the demandingness of this view of public reason, Rawls maintains that the requirement of public reason applies only when constitutional essentials and matters of basic justice are at stake. Call this the narrow view of public reason (Quong, 2011: 273–289).1 By contrast, Quong defends a broad version of public reason according to which we should apply the constraint of public reason, when possible, to every political decision. I believe that the distance in scope and width of these two interpretations of public reason can be subsumed by an analysis of two related but slightly different understandings of public reason as a social practice. On the one hand, public reason entails a specific view of democratic justification, according to which to be fully justified, political principles and  “But the ideal of public reason does hold for citizens when they engage in political advocacy in the public forum, and thus for members of political parties and for candidates in their campaigns and for other groups who support them, it holds equally for how citizens are to vote in elections when constitutional essentials and matters of basic justice are at stake,” Rawls (PL: 215). 1

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decisions must be supported by arguments and reasons that all citizens are able to support, since they are not incompatible with their sets of doxastic beliefs. According to this understanding, the value of public reason lies in the fact that citizens, when debating public matters, should address one another only with reasons that all parties can accept as sound reasons. This deliberative constraint can be justified by relying on the epistemic framework that I introduced in the previous chapters. If agents are aware that they cannot legitimately impose their epistemic authority over others on disputed evaluative matters, then it follows that they cannot propose in public settings sectarian reasons that they know are incompatible with the doxastic sets of beliefs of other parties. On the other hand, a less demanding reading of public reason claims that citizens are allowed to introduce non-public reasons, as long as, in due time, these very same reasons can be translated into public reasons accessible to all. This articulation of public reason is coherent with the proviso introduced by Rawls in his last work on public reason “The Idea of Public Reason Revisited” (1997). According to the proviso, it is possible to introduce our comprehensive beliefs into public discussions, “provided that, in due course, we give properly public reasons to support the principles and policies our comprehensive doctrine is said to support” (Rawls, 1997: 776). Thanks to the proviso, citizens are not constrained to eschew any reference to their comprehensive beliefs when they are engaged in public reasoning. This second reading on public reason seems to me more coherent with the attempt, maintained by Quong and others (Schwartzman, 2004; Williams, 2000), to employ the public reason deliberative constraint to every debate within the political domain, not just for matters related to basic justice and constitutional essentials. Moreover, defending a broad view of the public reason regulative ideal is important for establishing political practices of deliberation that respect the limits imposed by the shared normative framework of evaluative standards and organizing ideas. Indeed, if a majority of citizens supports the same set of evaluative standards, even if they do not support it for shared reasons, then deliberation can proceed in a conflicted, but respectful way. As a matter of fact, as I have illustrated, it is unrealistic to assume that under nonideal circumstances citizens can stably share the same reasons in support of political decisions.2 What is crucial is that we are able to refer to a common, public rationale for laws that will be binding on all. However, the very same laws and norms can be supported for sectarian reasons that are part of the comprehensive perspective of citizens. Thus, I believe that the proviso introduced by Rawls is correct, for citizens are allowed to employ their not-public reasons within public deliberation to the extent that this move does not undermine the shared normative framework of reasoning. In this sense, I support a deliberative reading of the regulative ideal of public reason, rather than a justificatory understanding. In other words, I maintain that a less demanding reading of the notion of public reason is compatible with the nonideal circumstances of real-world democracies and allows  “A political decision can be publicly justified whenever each and every member of the relevant constituency is justified in endorsing the decision, even if each person believes the decision is justified for different, and even incompatible, reasons. This approach thus permits citizens to converge on a political decision for different non-public reasons without appeal to any shared or common reasons,”, Quong (2011: 258). 2

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for a more flexible understanding of deliberative processes. As we have seen, granted the pervasive disagreement that characterizes contemporary societies, we need public procedures of decision-making that allow for a confrontation among reasonable and unreasonable citizens alike, therefore the deliberative constraints that we can employ cannot be too stringent. According to a deliberative interpretation of public reason, the major task accomplished by public reason is to guarantee that political decisions in a democratic arena are obtained following a normative framework of discussion. But then, is the idea of public reason playing any normative role in this picture I am drawing? My view is that the idea of public reason is still relevant in this less idealized picture when related to the notion of the duty of civility. Rawls defines this duty as follow (PL: 217): And since the exercise of political power itself must be legitimate, the ideal of citizenship imposes a moral, not a legal, duty—the duty of civility—to be able to explain to one another on those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason. This duty also involves a willingness to listen to others and a fairmindedness in deciding when accommodations to their views should reasonably be made.

The duty of civility so described refers to an attitudinal capacity of citizens to respect others and their points of view, while avoiding a dogmatic stance. These citizens, therefore, are open to constructive forms of dialogue. Against this backdrop, the idea of public reason makes sense in its deliberative reading, since it becomes the regulative ideal for political deliberations that are conducted by citizens who adhere to the duty of civility. In fact, the duty of civility can be seen as the instantiation of the virtue of reasonableness in deliberative settings. In exchanging reasons for reaching a collective solution to a political conflict, reasonable citizens respect the duty of civility when they abide by specific deliberative constraints, namely, the reciprocity constraint, the intellectual modesty constraint and the public reason constraint. This means that reasonable citizens are not requested to silence their private, probably partisan, views on political matters, but rather to address each other with respect, and with an open mind while deliberating with others. Reaching a (reflective) agreement about the validity of a loose normative framework of rules and guidelines proves fundamental in order to provide citizens with normative standards about how to reason publicly with other fellow citizens. Citizens who adhere to these normative standards can be defined as reasonable and they tend to respect the duty of civility when engaged in political deliberation with other parties.

5.1.2 The Deliberative Dimension of Public Reason Given the justificatory paradigm that I am here defending, it should be stressed that, when facing real-world democratic contexts, we ought to be aware that processes of conflict-management cannot rely on too strict deliberative constraints, since citizens are going to fight for their preferences and for their perspective to publicly win public disputes. Hence, we need to theorize ways to resolve conflicts that do not impose too demanding – and therefore unrealistic – input constraints on the reasons that are

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allowed in public discourses. These intuitions are relevant for laying out an adequate deliberative reading of public reason, since this reading focuses on the daily interactions among citizens to find public resolutions to political conflicts. This does not mean that as theorists we should not engage in attempts to deliver a fully public justification for political procedures and democratic decisions and norms. These are two related but different issues and I deem the former to be more relevant in the nonideal stage of a theory of liberal legitimacy. Keep in mind that the deliberative interpretation of the idea of public reason closely focuses on the constraints imposed on citizen when they engage in public debates and conflicts over contested matters. Are these constraints, when respected, conducive to achieving a political agreement on contested matters? Are these constraints helpful in establishing more respectful exchanges among conflicting subjects? I contend that, since individuals have the right to pursue their conceptions of the good, and as long as their preferences do not damage or prevent others from doing the same, constraining reasonable citizens to address one another only employing public reasons would be conducive to an excessive deliberative schizophrenia. This preliminary conclusion is indeed consistent with the overall project I outline in this work. As I claimed in the previous chapter, my model of democratic legitimacy establishes that the ideal phase of the theory focuses on providing a robust justification for a normative framework of reasoning that reasonable citizens should be able to stably comply with. The nonideal phase, instead, is open to citizens facing one another employing different kinds of reasons, non-public and partisan as well. I contend that citizens committed to liberal ideals are those that tend to address one another respecting the loose guidelines extrapolated by the liberal normative framework. Moreover, they acknowledge normative relevance to the ongoing democratic practice and are motivated to fully adhere to the constitutional principles and their underlining regulative ideals. Unreasonable and/or illiberal citizens, instead, are probably more prone to attempts at manipulating others and are less willing to acknowledge epistemic and practical authority to others. My point here is that assuming a very demanding interpretation of the idea of public reason will not resolve the challenge posed by these citizens. In this sense, I maintain that public conflicts can be managed through adequate forms of interaction and public exchanges, rather than through top-down justificatory procedures. This conclusion follows from the fact that a theory of legitimacy that accepts the limits imposed by reality on the liberal enterprise ought to reduce the justificatory scope of a theory of justice and instead ought to emphasize the relational dimension of justice claims that are intrinsic of the interactive dimension of democratic procedures. For this reason, among others, I maintain that the deliberative reading of public reason is the most relevant for my paradigm.3 Ordinary debates in the political domain do not focus on justifying a general theory of justice tout court, rather  “The problem of public justification arises only in the circumstances of public justification which are constituted, in turn, by the fact of antecedent non-agreement. And it is precisely because A and B disagree, for example, about the legitimacy of X-ing, that they are suitably considered parties to some project of public justification, which must therefore, ceteris paribus, solve the problem which renders them suitable for participation in this project,” D’Agostino (1992: 150). 3

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they deal with the laws, parliamentary proposals, middle-ground rules, etc. that shape our social life with others. In this context, the deliberative wager is that unsustainable and/or epistemically weak reasons will be filtered away during the discussion and that citizens will tend to agree on a middle ground that appears as a reasonable compromise from many different perspectives. Of course, not all involved citizens are going to be satisfied with the collective decision reached through public deliberation and this outcome is part of the democratic game. However, the legitimacy of democratic processes rests not just on which decisions are made, but also on the processes that conduce to those decisions. When a norm (N) is justified by appealing to a set of reasons that are incompatible with George’s set of beliefs, the only justificatory appeal left to George for supporting (N) is procedural, that is, if he has good reasons to assume that the procedures that conduced to the selection of (N) were legitimate and that his point of view was respected and treated fairly during the deliberative processes. Naturally, an appeal to strictly procedural reasons in support of (N) will not convince many members of the demos per se, but it is important to keep in mind that the way in which citizens interact with one another is a fundamental aspect of liberal paradigms of democratic legitimacy. Here again I stress the importance within my paradigm of the relational dimension of the processes through which citizens confront one another in order to reach some form of agreement over public policies. Given this relational reading of liberal legitimacy that I defend throughout this work, I propose to couple together the notion of public reasons (i.e. a constraint on the kind of reasons that can be given while facing other subjects on political matters) and that of deliberation (i.e. the process of reason-­giving in intersubjective contested settings), therefore emphasizing the inter-­ subjective dynamics related to the notion of public reason. I deem this move important, as it underscores the need to keep into consideration the voluntaristic dimension of liberal legitimacy as much as the justificatory dimension of this complex enterprise. This means interpreting this concept more as a deliberative process of accountability in which citizens are granted the possibility to reason publicly on the validity of policy proposals, rather than concentrating of the set of constraints limiting the kind of reasons that can enter the public discourse. In this sense, I suggest looking more carefully at the derived notion of public reasoning, that is, focusing our attention on the relation of mutual accountability in which citizens found themselves when they accept to treat one another as putative co-authors of democratic decisions, rather than concentrating on acceptable processes for restricting the reasons that subjects can employ in the public discourse. According to this view, the relational dimension of deliberation can satisfy adequate normative constraints even when citizens still employ their private reasons in political debate. What is relevant, in fact, is the citizens’ attitude toward their fellow citizens and their willingness to accept a mutual relationship of public accountability during their exchange of

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reasons.4 As a matter of fact, this conclusion is perfectly in line with both the ideal of co-authorship and my definition of reasonableness as a civic virtue, keeping in mind that these two concepts are fundamental aspects of my proposal for a relational version of political liberalism.

5.1.3 The Sincerity Requirement The deliberative reading of the idea of public reason emphasizes the dialogic practices in which citizens attempt to find a coordination among their preferences and ideals, in order to reach a legitimate public decision that resolves the conflict, whereas averting any request to some members of the constituency of unwarranted deference in favor of the collective decision. Looking at these dialogic practices and at the reasonable attitude of citizens, it is important to recall that most accounts of public reason stipulate a sincerity or “good faith” (Rawls PL: 236; 1997) requirement that is meant to widen the scope of the duty of civility within a deliberative setting. The sincerity requirement demands citizens to employ reasons in public debates that they sincerely believe are compatible with other parties’ systems of beliefs. In other words, this principle, if followed, requires that citizens address one another solely with reasons that they wholeheartedly believe are justifiable for the other party.5 This requirement, then, guarantees that citizens do reciprocally respect others’ reflexive agency. The sincerity requirement, when assumed as a deliberative constraint, prevents political deliberations from being constantly tarnished by manipulative attempts where rhetorical ability and asymmetries of power gain priority over a free and respectful exchange of reasons among agents sharing epistemic authority.6 In this sense, it is the liberal legitimacy ideal that provides normative relevance to the sincerity requirement. In fact, the legitimacy of democratic decisions does not depend solely upon the efficiency shown in aggregating conflicting preferences and ideals, but rather stems primarily from the way procedures of  Simone Chambers (2010) develops an interesting confrontation between voluntaristic and rationalist accounts of political legitimacy and distinguishes between a less demanding criterion of responsiveness toward others’ demands in the political domain and a more burdensome notion of reciprocity that involves criteria of acceptability for reasons to employ in the public discourse. “This very minimal idea does not require that citizens necessarily offer accessible, acceptable, or sharable reasons only that they offer reasons. Stony silence, lies, ‘it’s a secret’, ‘go away’, or ‘none of your business’, for example, are not appropriate responses to the question, ‘what is the reason for this legislation?’ Citizens show a minimum level of respect for each other by honestly and sincerely responding to each other’s claims, demands, and policy endorsements. Furthermore, a principle of accountability or responsiveness establishes an obligation on the part of power holders to give an account of power that can be assessed, criticized, and challenged if need be,” Chambers (2010: 897). 5  “Our exercise of political power is proper only when we sincerely believe that the reasons we would offer for our political actions […] are sufficient, and we also reasonably think that other citizens might also reasonably accept those reasons,” Rawls (1997: 137). 6  For a wide analysis of the role of the sincerity requirement for political discourse, see Bistagnino (2013) and Schwartzman (2011). 4

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aggregation and confrontation are laid out. Democratic interactions among citizens, beyond proving successful in solving conflicts, must be respectful of and responsive to citizens’ opinions and preferences, therefore granting justice for the relational dimension of such interactions as well.7 From the moral point of view, the sincerity requirement is justified showing that only when agents abide by this principle, are they able to confront one another while respecting the freedom and equality of each (Quong, 2011: 265). A generalized respect for the sincerity requirement would mean that citizens are not willing to reciprocally attempt to manipulate one another for the sake of personal self-interest. Further, reasoning in good faith also means that citizens would not resort to patronizing behaviors such as providing to others reasons they believe to be foolish, but that they are aware will have a grip on their adversaries. In this sense, sincerity is the requirement that allows a confrontational dialogue that is adequate from the relational perspective, since it requires citizens to willingly let go of manipulative and patronizing behaviors. In other words, I should sincerely attempt to recognize your point of view as legitimate (from your own perspective), even if I disagree with it. The epistemic analysis I developed in Chap. 3 is now helpful to fully grasp the normative reach of the sincerity requirement. According to this principle, Eliza, in the attempt to convince George to support the public norm (N), cannot use reasons that she believes, sincerely, to be irreconcilable with George’s system of beliefs. There is also a more demanding interpretation of this principle, according to which Eliza is compelled to appeal only to reasons that she believes, sincerely, to be justifiable for George and that, at the same times, are justifiable for her too. According to Gaus (1996: 139) this interpretation of the sincerity requirement is both radical and inefficacious, for it would impose on agents to discuss publicly only appealing to reasons that all the involved agents can share. Gaus, aware of the practical and epistemic constraints imposed on political deliberation by reality, maintains that we ought to defend a version of the sincerity requirement that, while avoiding unrestrained forms of manipulation, allows citizens to exchange reasons that are not necessarily shared by all the involved agents. Moreover, Gaus highlights that the democratic game is often successful when one party is able to appeal to a reason or a principle that is indeed particularly relevant for the other party.8 Otherwise, democratic interactions would not be a dialogue among parties, but rather a chorus of  Emanuela Ceva (2016) compellingly argues that the criteria of justice do not exclusively apply to the way in which conflicts are resolved, but rather they ought to refer to the terms of parties’ interactions during their conflicts as well. In advocating for a version of “interactive justice” for resolving salient conflicts in contemporary political societies, Ceva insists that it is necessary to address the justice demands inherent to the intersubjective relation between agents when conflict is ongoing, rather than focusing only on the justifiability of the end-states that lead to conflict resolution. 8  “Suppose that Betty proposes a norm, ‘Child health care should be funded by the state.’ Betty is a feminist atheist, while Alf is a Roman Catholic who strongly supports right-to-life groups. And let us also suppose—what many might deny—that Betty accepts that Alf’s views are openly justified in his own system of reasons and beliefs. It would seem entirely appropriate for Betty to put forward the following sort of argument: ‘Someone with your religious beliefs about the sanctity of a child’s life should support child health care.’ Given that Betty thinks Alf is justified in holding his beliefs, there is nothing cynical here about her appeal to them. She runs the danger of lapsing into cynicism when she bases her case on appeals to reasons of Alf’s that she thinks he has good reason to abandon,” Gaus (1996: 139, emphasis in original). 7

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voices that reads from the same score. A non-radical version of the sincerity requirement can be defined as follows: the argument (A) employed by Eliza to justify (N) to George is sincerely maintained by Eliza if and only if: (i) Eliza is justified in assuming (N) to be a valid norm; (ii) Eliza has a justified belief that (N) is justifiable within George’s system of beliefs and argument (A) is indeed compatible with his system of beliefs. In other words, the norm (N) must be justifiable both for Eliza and George. However, Eliza is allowed to appeal to a justificatory argument (A) that she believes is a valid argument in relation to George’s system of beliefs, even when case (A) is not justifiable for her given her set of beliefs. This not too stringent interpretation of the sincerity requirement is compatible with the doxastic presupposition and the requirement of intellectual modesty that I defend. Furthermore, this version of the sincerity requirement imposes some constraints on public deliberation, though allowing citizens to maintain their reflexive autonomy while debating with others.9 As should be clear by now, in a democratic setting each citizen ought to be respected as a valid source of moral and epistemic claims. This implies that I cannot address a fellow citizen with reasons that are merely instrumental to manipulate her, without any regard for her point of view. Instead, I am allowed to use reasons that I know might be convincing for the other party, even if I do not share this reason myself. However, I am allowed to employ the reason (A), even if I do not personally share it, if and only if I sincerely believe that the other party has good reasons, given her doxastic set of beliefs, to support the norm (N)  – that reason (A) can be used in support of  – that I publicly defend. Naturally, no agent has a full access to the other party’s perspective, so each of us  This version of the sincerity requirement is defended by Gaus (1996: 138–144), who maintains, for epistemic reasons not too dissimilar from mine, that is plausible to argue that “a relativism of reasons” (1996: 141) justifies the strategy, for Eliza and George, to appeal to reasons that they imagine are valid for the other party, but not for themselves. This conclusion derives from an epistemological account according to which even if Eliza is doxastically justified in believing that p on the grounds of Re, she cannot infer from this that George must believe that p for the very same reason. By contrast, Jonathan Quong argues against this conclusion and, more generally, he assumes the implausibility of convergence models of public justification, since he supports a more stringent reading of the sincerity requirement (2011: 265–273). This more stringent interpretation rests on an epistemological perspective according to which Eliza cannot sincerely believe that George is justified in believing that ~p if she believes that p. It is worth recalling that defending the plausibility of this epistemic possibility was one of the goals of Chap. 3 of this work, where I laid out my proposal of an epistemic characterization of the virtue of reasonableness according to which a reasonable Eliza is not necessarily epistemically incoherent – and insincere – in holding both these beliefs at the same time. The plausibility of this epistemic conclusion rests on the recognition that reasonable agents have good normative reasons – both practical and epistemic – to ultimately acknowledge each other as independent sources of valid claims as well as to not rule out once for all the epistemic possibility that the other party might indeed be right and they might instead be wrong. If my epistemic proposal is plausible, it follows that the more demanding interpretation of the sincerity requirement defended by Quong can be rejected in favor of the interpretation I support in this section. For a deeper analysis of Quong’s account of the sincerity requirement in connection with an illustration of the convergence model of public reason, see Baccarini (2014). 9

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has to reason from conjecture, doing so sincerely and not with manipulative intentions.10 It seems to me that Rawls’s last version of public reason in “The Idea of Public Reason Revisited” is indeed more compatible with the epistemic paradigm I defend than his previous analysis of this notion in PL. In the 1997 piece, agents are allowed to introduce non-public reasons into public discussions and the sincerity requirement does not impose them to solely offer reasons that they themselves support in their system of beliefs. In this sense, this less stringent interpretation of the idea of public reason opens up to forms of political discussion that do not necessarily aim at a full consensus among citizens, but, more realistically, attempt to find collective agreements and compromises that allow citizens to maintain their reflexive autonomy while sharing practical and epistemic authority with fellow citizens in establishing the public validity of the norm (N). In the next chapter, I will defend compromise-driven processes of public deliberation as adequate forms of political interaction among parties who try to overcome conflict. Therefore, clarifying that some accounts of the idea of public reason are not incompatible with this project is an important step forward for the overall argumentative strategy of this book.

5.2 Public Justification and the Reflexivity Requirement After the publication of PL, many scholars (Christiano, 2008; Cohen, 2009; D’Agostino, 1992, 1996; Estlund, 2008; Gaus, 1996, 2011; Wall, 2002, 2016) have investigated the possibility for political liberalism to self-reflexively justify its justificatory framework, that is, whether the practice of public justification can be publicly justified. Fred D’Agostino (1992), for example, has noticed that we lack a strictly public conception of the ideal of public justification, in the sense that liberal theorists disagree with one another about different versions of this ideal. Some theorists defend accounts of public justification grounded in the notion of full consent, therefore looking for a set of reasons (R) in support of the validity of norm (N) that all agents can agree upon. Others, instead, defend convergence models, in which agents support the validity of the same norm (N) but for different sets of reason that are not shared by all. Further, D’Agostino distinguishes between models of public justification that appeal primarily to agents’ beliefs and models that instead look at agents’ desires. The former strategy appeals to justificatory arguments that rely on reasons agents cannot reject given their sets of beliefs (acceptability interpretation).

 “We argue from what we believe, or conjecture, are other people’s basic doctrines, religious or secular, and try to show them that, despite what they might think, they can still endorse a reasonable political conception that can provide a basis for public reasons. The ideal of public reason is thereby strengthened. However, it is important that conjecture be sincere and not manipulative. We must openly explain our intentions and state that we do not assert the premises from which we argue, but that we proceed as we do to clear up what we take to be a misunderstanding on others’ part, and perhaps equally on ours,” Rawls (1997: 786–787). 10

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The latter, instead, emphasizes the voluntaristic dimension of the social contract tradition, therefore focusing on matching the justificatory force of public argument with agents’ most relevant desires (actual acceptance interpretation). Again, this double interpretation of the scope of public justification reflects the intrinsic tensions within the paradigm of political liberalism that I have been untangling in this work. Hence, it is important to further investigate the notion of public justification in order to clarify which account I deem to be more adequate for the model of political legitimacy I here defend. The first step in this analysis is illustrating Steven Wall’s criticism of the possibility for the principle of public justification to satisfy the reflexivity requirement.

5.2.1 Two Requirements of Public Justification Steven Wall discusses whether the public justification principles can embrace the reflexivity requirement in his “Is Public Justwification Self-defeating?” (2002). First, he introduces the public justification principle (PJP), according to which coercive political authority ought to be publicly justified to those subjected to this authority.11 Since PJP is not a self-evident principle, it requires justification itself. Wall’s goal is to prove that PJP is self-defeating, in the sense that it cannot itself be justified publicly. In order to show the groundlessness of PJP as a valid principle of political legitimacy, Wall begins by introducing two requirements that PJP ought to satisfy: (i) publicity requirement (ii) acceptability requirement The publicity requirement requires that justification, in order to be public, ought to be intelligible and assessable by agents. This implies that I cannot employ reasons that are in no way intelligible to others or referring to a piece of evidence that others have no access to. As we shall see in the second part of this chapter, Wall defends an onerous version of the publicity requirement, interpreted as a request to provide justificatory reasons that are accessible to others, rather than merely intelligible. The acceptability requirement involves that public justification is one that cannot be reasonably rejected by the agents to whom it is addressed. A justification is reasonably acceptable when it “can be accepted by all to whom it is addressed, despite their different and possibly conflicting background moral beliefs, provided that they all reason well and are committed to modifying their claims when necessary so as to make mutually acceptable justifications possible” (Wall, 2002: 386). This reading of the acceptability requirement is pretty mainstream and not problematic. However, it is worth noting that in other writings (2010, 2014, 2016), Wall introduces a  “The Public Justification Principle (PJP): A coercive law L is justified in a public P if and only if each member I of P has sufficient reason(s) Ri to endorse L,” D’Agostino and Vallier (2014: 6–7, emphasis in original). 11

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demanding interpretation of the concept of individual rationality. In fact, Wall defends a perfectionist view of liberalism that is supported by an externalist account of reasons. According to this view, reasonableness should be interpreted as the epistemic virtue of being able to acknowledge that there are reasons that we – as epistemic agents – cannot reasonably reject. According to this view, “it is possible for a person to have a reason to do something, even if there is no sound deliberative route that can take him from his current set of reasons and beliefs to the recognition that he has the reason in question” (Wall, 2010: 126).12 According to this account, an agent is epistemically unreasonable when she rejects a particular conception of justice for bad epistemic reasons (Wall, 2016). It follows that for Wall the actual acceptance constraint is not relevant for his account of liberal legitimacy. Epistemic criteria of acceptability cannot be drawn from common sense – or specifically from the actual sets of beliefs held by citizens – rather we should focus on good normative reasons that can be adduced in favor of the political conception itself. Along these lines, Wall argues that perfectionist accounts of liberalism express full respect for individuals emphasizing the ideal rational capacity that individuals have access to when they meet the standards of epistemic reasonableness. The ability to respond to good reasons we cannot reasonably reject is an epistemic capacity we share as rational human beings, and liberal perfectionism, highlighting the relevance of such a capacity, attempts to establish the legitimacy of the political conception focusing on the philosophical-normative dimension of this enterprise. Wall contends that justificatory arguments should not be constrained by the search for actual legitimacy and stability. According to Wall, a model of political legitimacy that defends a strong inclusiveness requirement for citizens’ opinions and doxastic reasons tends to obstruct the realization of justice and lets go of the search for the objectively correct conception of justice. In this conclusion lies the fundamental perfectionist drive of his position. By contrast, I defend a view of political legitimacy in which the stability for the right reasons constraint is no less relevant than the philosophical constraint. In this regard, I do not believe that it is possible to fully respect all citizens (and their autonomy) if we do not look for a balance between considerations of legitimacy resting on the actual acceptance constraint on the one hand, and the considerations of justice resting on the ideal of acceptability on the other.13 Even though my approach is anti-perfectionist, I believe that Wall’s view on the impossibility for public justification to be publicly justified is well posed and worthwhile being illustrated. Moreover, Wall, notwithstanding his demanding account of epistemic reasonableness, is aware that the justification of the permissibility of coercive authority cannot depart completely from the agential perspective of the subjects to this authority. In this sense, he distinguishes between a correctness-­ based justification and a public justification. A correctness-based justification demonstrates that a conclusion is correct, regardless of whether or not all subjects  Usually, an externalist view of epistemic reasons is linked to an objectivist view of normative reasons. See Bistagnino (2020); Enoch (2010, 2011); Parfit (2011); Raz (1998). 13  For a wider critique of the epistemic dimension of reasonableness as characterized by Wall as both epistemically burdensome and normatively problematic, see Liveriero (2020). 12

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assume a commitment toward the object of this justification. Two plus two equals four, irrespective of whether individuals do believe so. By definition, instead, public justification requires agents to accept this justification as compatible with their wider sets of beliefs and values, in order for the justification to have any relevance at all. The only sense in which a justification is public is that it is shareable from different and often incompatible perspectives. Hence, Wall concludes that public justification for coercive political authority can be compatible  – even identical  – with correctness-based justifications, but not necessarily so. We might be able to provide an ultimate, sound correctness-based justification for a liberal conception of justice and yet this justification might not be able to be established as a public justification as well. To conclude, even from the perspective of a perfectionist account of liberalism the voluntaristic dimension of the public justification cannot be entirely overlooked. In the next section we will see how Wall attempts to keep together these aspects of public justification with his onerous account of what count as normative, agent-independent, reasons for justification.

5.2.2 The Reconciling Function of Public Justification Wall illustrates that providing correctness-based justifications for the legitimacy of coercive political authority might not be sufficient to grant legitimizing force, since correctness-based justifications do not necessarily provide reasons for agents to feel reconciled to the political authority that constraints their actions. By contrast, this reconciling function is exactly the function of public justification, since the main goal of PJP is to assure the actual availability of different paths of reconciliation between the agential perspective of citizens and the political conception. The reconciling function is consistent with the ideal of liberal legitimacy according to which – as I have showed in previous chapters  – citizens, in their role of co-authors of political decisions, should be able to find an adequate reconciliation between their private points of view and collective decisions.14 Reconciliation requires that some sincere intelligible justification be available for coercive political authority. But also, reconciliation is achieved when this justification is not simply intelligible to agents, but in a sense ‘speaks to them’ in a constructive way. Any time we attempt

 Jürgen Habermas defends a similar reconciling function for public reason when he argues for the co-originality of moral autonomy (private) and civic autonomy (public) within a functioning constitutional democracy. “If one introduces the system of rights in this way, then one can understand how popular sovereignty and human rights go hand in hand, and hence grasp the co-originality of civic and private autonomy. The scope of citizens’ public autonomy is not restricted by natural or moral rights just waiting to be put into effect, nor is the individual’s private autonomy merely instrumentalized for the purposes of popular sovereignty. Nothing is given prior to the citizen’s practice of self-determination other than the discourse principle, which is built into the conditions of communicative association in general, and the legal medium as such,” Habermas (1996: 127–128). 14

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to justify coercive political authority employing sectarian reasons (even when intelligible) we betray the reconciling appeal of political liberalism. The importance attributed to the reconciling function of PJP shows us why Wall defends a demanding interpretation of the publicity requirement. In order for PJP to actually reconcile the coercive political authority with citizens’ private points of view, it is not enough that the public reasons provided in collective debates are intelligible to citizens. Instead, they should actually result acceptable to them, given their moral background sets of beliefs and values. It follows that PJP can properly play a reconciling function if and only if the publicity and acceptability requirements are simultaneously respected. Hence, the need to evaluate whether PJP can itself be publicly justified – therefore employing a justificatory strategy that satisfies these two stringent requirements – as an acceptable strategy to justify coercive political authority.

5.2.3 Is there a Possibility to Publicly Justify the Public Justification Principle? Wall claims that either we are able to prove that PJP does not itself require public justification, or we should be able to provide this kind of public justification for PJP. In the case where we justify PJP appealing to sectarian arguments, we will be likely to incur legitimate contestation of PJP from members of the constituency who do not agree on the justificatory force of the sectarian reasons introduced in support of PJP. Does PJP retain legitimizing force if can be reasonably rejected by some citizens? And from the agential perspective, are citizens who reject PJP to be considered unreasonable? According to Wall, these two questions are not easily settled, and we need to distinguish between two slightly different definitions of unreasonableness: (i) An agent is unreasonable when she is not willing to abide by the acceptability requirement of public justification, that is, she is not willing to engage in a constructive public process of exchanging reasons and be ready to modify some of her claims and maybe even some of her beliefs in the light of this exchange. (ii) An agent is unreasonable when she is not willing to accept a claim or a justification she has good reasons to accept given her doxastic sets of beliefs. The former interpretation of unreasonableness stresses that citizens, in order to be willing to address one another with mutually acceptable reasons, ought to have some trust in the democratic processes of confrontation and decision-making. In this sense, it seems that a democratic ethos is required in order for citizens to fully support PJP. The latter interpretation, instead, focuses on the epistemic stubbornness often shown by unreasonable individuals, that is, individuals who tend to oppose reasons that they, counterfactually, would have good reasons to accept. But, again, if we introduce very good sectarian reasons in support of PJP, can we justify

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coercive political authority to citizens that do not accept these reasons? It does not actually appear that they are unreasonable at all in not accepting this sectarian justification of PJP that is incompatible with their doxastic sets of beliefs. Here again the voluntaristic dimension of liberal legitimacy proves its relevance when we engage in a technical enquiry about what PJP requires. Wall, then, investigates the strategy that attempts to publicly justify PJP. Correctly, he notes that many authors, among them Rawls, have tried to resolve this impasse anchoring the justification of PJP to background considerations that are embedded in the public democratic culture of liberal societies. As we know by now, ‘the contextualist move’ within the political liberalism paradigm envisages a strategy to motivate citizens to abide by PJP requirements starting from what citizens (implicitly) share as members of the same democratic context. Wall presumes that the most helpful consideration that can be extrapolated from the shared political culture of modern democratic societies in order to publicly justify PJP is the principle of equal respect. Many authors have indeed maintained that the principle of equal respect can be considered the most basic normative consideration at the root of liberalism (Galeotti, 2011; Larmore, 2008; Rawls, 1997; Weithman, 2011). However, Wall contends that even if we assume that all the members of the constituency might have good reasons to accept the validity of the principle of equal respect, still it is reasonable to expect citizens to diverge upon the specific interpretation of this very general principle. For example, agents (and theorists) do disagree about what this principle entails, how to publicly implement it, whether there are different forms of respect (e.g. appraisal respect, recognition respect, opacity respect, and so on). Once we acknowledge that reasonable disagreement arises with regard to different interpretations of the general principle of equal respect, it appears that, again, we might have disagreement about a public justification for PJP that appeals to a particular interpretation of the basic notion of equal respect. Wall concludes that the only possibility of avoiding reasonable disagreement when publicly justifying PJP by appealing to the general principle of equal respect is to prove that this justification is one that no rational agent can reasonably reject. This conclusion, however, would require that public justifications and correctness-based justifications cannot diverge. But Wall has already proved that often these two forms of justification do diverge. Therefore, Wall concludes, PJP is a self-defeating principle, since a public uncontested justification of PJP is not available. It follows that the reflexivity requirement cannot be satisfied. Wall reaches a compelling conclusion regarding the unlikeliness that PJP can ever be publicly justified. However, in a more optimistic tone, he introduces two important points of further reflection. First, it might be the case that a conclusive public justification of PJP is not available yet, under the current circumstances of democratic societies. For this reason, PJP provides an important normative criterion to push for reforms and political transformations that might be conducive to democratic settings in which it would become possible to publicly justify PJP. Second, it is very important to realize that “political legitimacy is not an all or nothing affair, but a matter of degree” (Wall, 2002: 392). Accordingly, theorists can press the point that PJP is a justificatory principle that satisfies the requirements of public

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justification to a greater extent than any rival principle of political legitimacy given the nonideal circumstances of politics. Even if is true that reasonable disagreement arises when attempting to publicly justify PJP, this disagreement is more circumscribed than the disagreement related to other justificatory candidates for establishing whether coercive political authority is legitimate or not.

5.3 Justificatory Liberalism In Chapters 2 and 4, I illustrated the political liberalism paradigm as introduced firstly by Rawls and afterwards defended (and systematized) by Quong. In my attempt to clarify the Rawlsian proposal and to depart from it in order to illustrate what I called a beyond-Rawls account of relational liberalism, I insisted that it is impossible to do away with an epistemological analysis when supporting a general justificatory framework for liberal legitimacy. A similar critique regarding the alleged methodological weakness of political liberalism due to the lack of an adequate epistemological analysis is laid out by theorists who defend forms of justificatory liberalism. This version of liberalism concentrates on establishing whether any form of coercion can ever result publicly justified in a genuine sense (Eberle, 2002; Gaus, 1996, 1999, 2011; Vallier, 2011a, 2014a, b, 2016a, b). Justificatory liberalism widens the scope of public justification to every coercive aspect of the political domain, where coercion is defined as any act in which an agent or an institution demands practical authority, that is, the power to determine which action ought to be performed or forbidden. Political versions of liberalism clearly distinguish between a more burdensome justificatory task for the legitimacy of the basic structure of a liberal society and a less onerous account for contested democratic decisions within an already justified institutional setting. By contrast, justificatory liberalism does not distinguish between the constitutional and post-constitutional domains when addressing the justificatory issue, since it requires an ultimate, public and intelligible justification for any coercive act. Further, proponents of justificatory liberalism engage in a technical analysis of the epistemological premises in support of the justificatory strategy of liberalism. According to Gaus (1996) strictly political versions of liberalism are normatively inadequate, since their epistemically-not-refined-account of justification does not provide an acceptable theory of what publicly justifying a principle requires and implies.15 Gaus is aware, as much as Rawls, that “there is no such thing as an uncontentious theory of justification” (1996: 4), and he is ready to defend the epistemology that backs up his theory of justice, even at the expense of neutrality.  “Justificatory liberals require a normative theory of justification—a theory that allows them to claim that some set of principles is publicly justified, even given the fact that they are contested by some. And this, in turn, appears to call for a moral epistemology, in the sense of an account of the conditions for justified moral belief, or at least justified adherence to social principles,” Gaus (1996: 3, emphasis in original). 15

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The theoretical intuitions that prompted me to write this book are close to some of the methodological stances defended by Gaus. Yet, before illustrating his proposal for a justificatory form of liberalism, let me explain why I assume that my proposal for a revised version of liberal legitimacy ̶ in the term of a relational version of political liberalism ̶ is still more compatible with a Rawlsian outlook rather than closer to a Gausian one. In defending a firm distinction between the justificatory tasks of the ideal and nonideal phase of the theory, my model clearly illustrates the justificatory limits of the liberal enterprise under nonideal circumstances. My justificatory proposal distinguishes between strictly justificatory goals for the theory and more practically oriented deliberative tasks for the day-to-day democratic life. In other words, I assume different standards of justification for different applicability domains and degrees of tolerability for acts of contestation regarding different political goals and contexts. As we have seen, the justificatory standard envisaged for the loose liberal framework is normatively more demanding than the kind of justificatory arguments that may be available to prove the legitimacy of ordinary political decisions. Clearly, then, my model does not share the intuition supported by justificatory liberalism that any coercive act or norm ought to be publicly justified, assuming a very encompassing interpretation of the public justification principle. On this, I agree with Steven Wall that political legitimacy is not an all or nothing practice, but it comes in degree. This is especially true for the nonideal phase of the justificatory project, a phase that deals with a domain of degrees and grey areas. As a matter of fact, in the nonideal phase we have to deal with contextual analyses, partial compliance, legitimate but probably not conclusively justified coercive acts, disagreement on general principles as much as on particular interpretations of specific laws, etc. In order to distinguish my approach from Gaus’s, it is important to understand that, whereas Gaus’s project is strictly (and coherently) justificatory, mine is instead an attempt to establish an account of political legitimacy for a relational version of liberalism. Even though my proposal carefully engage with the epistemological dimension of political legitimacy, in general terms I outline a version of relational liberalism that emphasizes the relational dimension of conflicts (i.e. how to react to the fact of disagreement with others while being aware of the need to strike a solution to avoid indeterminacy in public settings; a focus on reasonableness as a civic posture in which individuals acknowledge their mutual status as co-authors of democratic decisions), over the epistemological dimension of disagreement and public justification (i.e. what beliefs agents are justified in believing and for which reasons and whether such reasons are adequate to grant public justification for a coercive act). Given this general distinction between the inner rationales of relational liberalism and justificatory liberalism, it appears clear that, although I share with Gaus important intuitions on the epistemic aspects of our social efforts for political legitimacy, our main goals, methodological perspectives and theoretical tools differ quite sharply. That being said, I maintain that Gaus’s proposal is very important to cast light on some of the most pressing problems of standard accounts of political liberalism. For this reason, the next sections are dedicated to an illustration of Gaus’s justificatory liberalism.

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5.3.1 The Libertarian Clause In general, defenders of justificatory liberalism assume that individuals’ private spheres should be properly defended from any possible abuse of power by authorities. Naturally, this conclusion holds indeed true for any genuine liberal theorist. However, the discriminatory difference between political and justificatory forms of liberalism lies in a more stringent reading of the presumption in favor of liberty (Mill [1859] Mill, 1979; Nozick, 1974) defended by the latter. According to a stringent reading, when an authority faces the choice between acting coercively on citizens or leave them free to act as they see fit, other things being equal, the authority should leave citizens free to make their own choices. The general norm is liberty; any departure from this condition, that is, coercion, requires special justification.16 According to defenders of justificatory liberalism, political versions of liberalism are not successful in providing an adequate justification for coercive acts by political authorities. In fact, for these theorists any coercion is justified if and only if two requirements are satisfied: i. since the burden of proof lies on the agent or political institution that claims practical authority in interfering with individuals’ freedom, the justification must prove that the coercive act and its consequences are beneficial enough to compensate the intrinsic costs derived from the act of limiting individuals’ freedom; ii. the justificatory reasons in favor of the coercive act should be valid for every subject of the coercion, no one excluded. The first requirement expresses the libertarian basic intuition that any coercive act is illegitimate, until proven otherwise.17 The second requirement, instead, illustrates the need for a normative theory of justification that calls for a proper investigation within the field of moral epistemology to establish when and how justificatory reasons are indeed valid. Distancing himself from Rawls, Gaus clearly claims that it is not possible to draw a self-standing theory of political legitimacy without articulating the moral epistemology that backs up the justificatory strategy employed by such theory. Gaus raises a proper methodological critique to Rawls, very similar to Raz’s criticism that I illustrated in Chap. 2, claiming that any version of political liberalism, embracing the method of epistemic abstinence, is doomed to fail in the  “the clarion call of justificatory liberalism is the public justification of coercion,” Eberle (2002: 54). 17  “If one could show that the state would be superior even to this most favored situation of anarchy, the best that realistically can be hoped for, or would arise by a process involving no morally impermissible steps, or would be an improvement if it arose, this would provide a rationale for the state’s existence; it would justify the state. This investigation will raise the question of whether all the actions persons must do to set up and operate a state are themselves morally permissible. Some anarchists have claimed not merely that we would be better off without a state, but that any state necessarily violates people’s moral rights and hence is intrinsically immoral. Our starting point then, though nonpolitical, is by intention far from nonmoral. Moral philosophy sets the background for, and boundaries of, political philosophy. What persons may and may not do to one another limits what they may do through the apparatus of the state, or do to establish such an apparatus. The moral prohibitions it is permissible to enforce are the source of whatever legitimacy the state’s fundamental coercive power has,” Nozick (1974: 5–6). 16

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attempt to provide a normative theory of justification, because it is actually impossible to reach this goal eschewing an adequate epistemological analysis. Moreover, Gaus maintains that genuine disagreement is a fact of human life that touches both political and epistemological matters alike, making it impossible to circumscribe reasonable disagreement only to political conceptions, leaving aside epistemological debates. Justificatory liberals, pace Rawls, believe that epistemological disputes are intrinsically political, because it is not possible to keep epistemological disagreements completely detached from the provision of a normative theory of justification. To settle on a particular conception of public justification, it is therefore necessary to settle questions, at least to our own satisfaction, which are themselves properly political questions. The project of public justification therefore cannot be beyond or prior to politics itself. It is not a meta-political project, as some have wishfully thought; it is, rather, itself a part of properly political argumentation. (D’Agostino, 1992: 158)

This encompassing conception of public justification defended by authors such as Gaus and Vallier has normative implications for the entire justificatory paradigm they lay out. First, justificatory liberalism does not clearly distinguish between the political and non-political domains. Coercive acts happen in the non-political domain as well, and the very same public justification requirement applies in such circumstances. Second, and this is quite intuitive, the same justificatory standard applies to both issues of basic-structure justice and ordinary political decisions.18 Third, internal interpretations of liberalism, such as Quong’s, have not much relevance for justificatory liberals, since they assume that coercive acts should be justifiable for every citizen, regardless of their adherence or not to liberal values. Gaus (1996: 165) defends a fundamental liberal principle according to which: P(L): Imposition on others requires justification; unjustified impositions are unjust. Any time a claim of practical authority that allows interference over someone’s freedom cannot be publicly justified, the only practicable (and legitimate) solution is tolerating others’ actions and ways of living. Specifically, Gaus stresses that any interference in others’ preferred course of action conducted for a moral reason, therefore involving a moral demand, requires a public justification, since personal reasons are not sufficient to guarantee justification for the interference. This implies that in the moral domain, comprising the political domain as well, coercion can be declared legitimate if and only if a sufficient and adequate interpersonal justification is provided (1996: 12). Therefore, Gaus introduces a second principle, subsequent to the liberal one, the basic principle of public reason (here presented in its last formulation in Gaus, 2011: 263):

 “public reason principle applies to all instances of governmental coercion. The important contrast for justificatory liberalism is not between types of governmental activity, say, activity that aims to promote conceptions of the good and activity that aims to secure justice, but rather between instances of governmental coercion, irrespective of subject matter, that can be publicly justified and those that cannot,” Wall (2010: 127, emphasis in original). 18

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BP(PR): A moral imperative “φ!” in context C, based on rule L, is an authoritative requirement of social morality only if each normal moral agent has sufficient reasons to (a) internalize rule L, (b) hold that L requires Φ-type acts in circumstances C and (c) moral agents generally conform to L. The relevant point is to understand whether situated agents are actually able to act impartially when involved in intersubjective justificatory practices. Reflecting on the epistemic requirement of intellectual modesty that I defended in Chap. 3, acting impartially implies that agents, even when not skeptical about the validity of their own doxastic perspectives, are able to recognize that reasons that are good for them, not necessarily are good reasons for others. We are not requested to let go of our partial perspective, but to understand that in intersubjective settings we ought to look for reasons that are not partially favoring – or more consistent with – our own perspective. This implies that it may be impossible for us to propose a justification for (L) that is grounded in a moral reason that we deem to be superior to other reasons, in case we realize we are not able to sufficiently justify it to others. In fact, if a powerful faction goes ahead and imposes (L) supporting it with partisan reasons that some other citizens do not acknowledge as valid, then the powerful faction acts as if its reasons and preferences should be given priority over others’, therefore contradicting the normative notion of co-authorship and the requirement of not imposing any form of epistemic deference to members of the constituency. This analysis is helpful in providing epistemic reasons, as well as moral ones, in favor of public justification as the most important justificatory practice in a democratic collective setting. In fact, the commitment to public justification relies on the ability of reasonable citizens to recognize that their own perspectives, even if they assume them to be correct, are not necessarily definitive. Within this epistemic paradigm, an important concern comes up: are impartial reasons so defined, since, descriptively, every agent that adheres to (L) happens to share these reasons; or are impartial reasons so defined as, prescriptively, they are those reasons that normal moral agents cannot reject? Here again we touch upon the fundamental issue of defining the scope and limits of the acceptability requirement. Indeed, any conception of public justification ought to clarify the interpretation of the acceptability requirement, since different versions of this requirement involve different justificatory ambitions for the overall justificatory enterprise. As we saw in the first part of this chapter, Steven Wall, for example, defends an externalist view of reasons that implicates a prescriptive rather than descriptive interpretation of the justificatory power of impartial reasons. Sound justificatory reasons might be sufficient to grant justification for (L) regardless of the actual agential deliberative processes in real-­ world democratic contexts. Strong forms of externalism of reasons assume that endorsing a law that involves (φ!), therefore establishing it as legitimate, does not regard actual endorsement, but rather involves an analysis of the reasons that agents cannot reasonably reject. This implies either an endorsement in a counterfactual sense, that is, demonstrating that, under different circumstances, agents would have in fact accepted the law; or a rationally required endorsement, where it is shown

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that a fully rational agent is indeed committed to endorse the law (D’Agostino & Vallier, 2014: 9). Gaus, instead, endorses a modest form of externalism.19 He maintains that in order to justify a coercive act (L) to Eliza it is not sufficient to provide impartial sufficient reasons (R) in favor of (L), in case these reasons are actually not accessible to Eliza, starting from her doxastic system of beliefs. The accessibility of (R) to Eliza – and to other subjects to rule L – is essential for establishing whether (L) can be publicly justified or not. Clarifying this conclusion will be the object of analysis of the next section.

5.3.2 Open Justification as a Weak Externalist View In his epistemological analysis, Gaus defends a modest form of externalism, since he maintains that for assessing the justifiability of Eliza’s beliefs and reasons, we cannot do away with an analysis of the deliberative processes employed by Eliza for believing what she does. Against strong forms of externalism, Gaus claims that it is impossible to provide a sufficient justification to Eliza to believe that p if the reasons in support of p are completely incompatible with Eliza’s doxastic system of beliefs, or utterly not intelligible to her. However, his account is modestly externalist, because it encompasses an assessment of these systems from an external perspective as well (1996: 30–62). Modest externalism assumes the epistemic distinction between referring to a fact as a matter of the world and referring to a reason as the result of appropriate connections made within a cognitive system (1996: 34). A fact  Specifically, in Justificatory Liberalism, Gaus refers to his account as a modest form of externalism. “I argued that good reasons are relative to a system of reasons and beliefs, and thus rejected strongly externalist views of reasons. However, the idea of open justification does endorse a modest form of externalism, allowing others to take up an external perspective and consider what reasons a person really has. But because the point of reference is always the person’s system of beliefs and reasons, suitably modified to take account of new information and criticism, the possibility of a relativism of reasons emerged,” Gaus (1996: 63). However, in his The Order of Public Reason, Gaus claims that his analysis does not necessary commit him to take a clear stance between externalism and internalism. However, he clearly rebuts what he calls “The Externalist View of Having a Reason” (2011: 233). “But when we ascribe to them reasons that are truly inaccessible to them as agents, to insist that they have a reason ϕ is simply a way of saying that ϕ is right, but the rightness is not something that can enter into their agency” (2011: 235). It is worth noting that Wall (2010: 146) claims that Gaus’s approach actually depends upon an internalist account regarding agential reasons for action: “But Gaus also makes it plain that, on his view, justification must take its point of departure from a person’s current system of reasons and beliefs. Applied to reasons for action and not merely to reasons for belief, this view fits well with Williams’s influential account of internal reasons; namely, that for a person to have a reason for action, there must be a sound deliberative route from the person’s subjective motivational set to the consideration which purportedly provides the reason to act. That is why I describe Gaus’s view of moral reasons as ‘internalist’.” I do not have space here to engage with this debate, so let me simply add that Wall’s hypothesis seems to me reasonable, since I do not find many relevant differences between my epistemic model, that I called modestly internalist, and Gaus’ open justification account. 19

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about the external world cannot be a reason for an agent. We need agents to assume an epistemic commitment toward a belief regarding this fact of the world and this commitment is partly supported by cognitive connections with other parts of agents’ doxastic systems. External reasons might be epistemic good reasons for justification, but they are activated when an agent shows a commitment to include them in her cognitive system. Otherwise, even good epistemic reasons, if not relative to any specific system of reasons and beliefs, turn out to be moot. Gaus defends an epistemic, weakly externalist, model that he calls open justification. Open justification takes Eliza’s current doxastic system of beliefs as the starting point and then asks two things: (i) Given Eliza’s system of beliefs, should she be open to a new piece of information? (ii) Should Eliza be committed to partly revising her system of beliefs in the light of new information? Open justification includes an external perspective for the assessment of the validity of Eliza’s system of beliefs, but her doxastic system is still the starting point of any epistemic process. In fact, Gaus argues against the normative power of any inherently impersonal reasons in motivating agents to action (1996: 35).20 This model stresses the epistemic possibility that what Eliza is indeed justified to believe given her current system of beliefs and the informational set available to her may turn out to be wrong counterfactually. This conclusion is very similar to the fallibilist counterfactual clause that I introduced when I illustrated the nonideal epistemic circumstances of justification in Chap. 3. The difference is that I use the clause as an epistemic argument to show agents that they have good reasons for assuming a general attitude of reasonableness and intellectual modesty, whereas Gaus is looking at the actual epistemic possibility that new justificatory reasons can be included within agents’ systems of beliefs. By contrast, a closed justification is one in which the assessment of the epistemic value of Eliza’s system of beliefs relies upon her present commitments, without engaging in a deliberative process conjecturing about what possible epistemic commitments would arise in the light of new information, arguments raised by other subjects while confronting each other. However, both closed and open justification understand reasons as epistemic commitments that stem from agents’ doxastic systems of beliefs. Strong externalism, instead,

 “Open justification might be described as weakly externalist. According to open justification, Alf’s current belief, ß, may not really be justified despite the fact that it is justified given Alf’s current system of reasons and beliefs. So open justification takes an external perspective on what Alf is justified in believing. However, open justification takes Alf’s current belief system as the point of departure. Beginning with Alf’s current system S, open justification asks: Given the beliefs currently constituting S, is Alf committed to accepting some new reason R’ that would result in a new system S′, in which R would no longer justify ß (perhaps because R has been dropped from S′)? Although the conclusion of an open justification can disagree with Alf’s own (closedly) justified judgments based on his system of reasons and beliefs S, that system is always the point of departure for the external criticism,” Gaus (1996: 32). 20

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assumes that there are reasons that give rise to epistemic commitments without any necessary link to agents’ doxastic sets. The openness of justification means that the intersubjective setting in which we are embedded may often persuade us to revise some of our beliefs, because we might have access to a new piece of evidence, or because the confrontation with other agents might push us to revise some aspects of our system of beliefs. This conclusion is perfectly consistent with the work in progress dimension of justification that I have highlighted, and it is also compatible with the epistemological analysis of the role that disagreement among peers can play in persuading agents toward a revision of some of their epistemic commitments.21 Further, the openness of justification is supported by a phenomenological analysis of our ordinary epistemic practices. In fact, most of agents’ beliefs are openly justified, not indisputably justified. Agents have a sufficient reason in support of the belief that p, when given their current systems of beliefs and an adequate, but not definitive, access to the evidence at stake, the belief that p appears to them as undefeated. In pluralist contexts, many of our evaluative beliefs even when reasonable, are likely contentious beliefs, since agents tend to disagree over them. Citizens are openly justified in believing that p when they can provide an undefeated – but likely publicly unvictorious – justification in support of that p. From this analysis Gaus concludes that public justification, in order to provide a sufficient reason (R) in support of (L), ought to take into consideration the deliberative path that can persuade agents to doxastically support (R). Maintaining a version of open justification, and consequently assuming as valid the counterfactual clause, implies that in social contexts a specific reason (R1) may be justified for some agents but not for others. This conclusion entails a modest relativism of reasons, since any epistemic assessment of the value of reason (R1) is partly relative to agents’ systems of beliefs and reasons. Coherently with the epistemic account that I defended in Chap. 3, modest relativism presumes that Eliza can be openly justified in believing that p, meanwhile George is openly justified in believing that ~p. This epistemic conclusion has important practical consequences for a normative theory of public justification. We know that the presumption in favor of liberty requires (L) to be justified publicly, that is, being sufficiently justified for everyone subject to rule (L). The main question then regards how to produce a public justification for rule (L) that provides sufficient reasons both for Eliza and George and everybody else in the political domain of reference. In order to provide public justification to rule (L) it is not sufficient to provide sound impartial reasons, we ought to relate to beliefs, values and practical commitments maintained by members of the constituency subjected to rule (L). Correctly, justificatory liberalism insists on the irreducibility of the agential perspective, since individuals hold very different doxastic systems of beliefs and values along with having different biographical experiences and informational sets. From this it follows that we cannot impose on citizens a coercive act (C), derived from the  It is worth noting that the most relevant difference between my epistemic paradigm and Gaus’s is his rejection of coherentism as an adequate theory of justification, since he argues that not all beliefs can be purely inferentially justified (Gaus, 1996: 74–91). 21

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rule (L), as an authoritative requirement of social morality, justifying it through the appeal to inherently impersonal reasons. How is it then possible to grant impartiality meanwhile looking for a justification that is also agent-relative? Gaus defends, along with other theorists, such as Fred D’Agostino, a convergence model of public justification. As we have already seen, Eliza and George converge on the validity of the coercive act (C) when they both have a sufficient undefeated reason in support of (C). Eliza has reason Re, George has reason Rg in favor of (C) and they converge publicly on the legitimacy of (C) even if they keep disagreeing about the supporting reason justifying (C).

5.3.3 Justificatory Populism Assuming the epistemological perspective defended by Gaus has relevant consequences for the definition of the scope of the acceptability requirement for public justification. Again, there is the need to find an adequate balance between the justificatory goal of finding a sufficient and undefeated reason (R) in favor of (C) that is not tied down to the doxastic systems of actual citizens, often acting unreasonably, and the requirement that (R) turns out to be acceptable for citizens that ought to restrain their behavior according to (C). As we have seen, diverse accounts of public justification propose a different balance between the acceptability requirement and the actual acceptance criterion. Further, different theoretically envisaged balances between these two requirements give rise to different justificatory standards for a general account of liberal legitimacy. The more a justificatory strategy relies on the depiction of the conception of justice an idealized version of Eliza would have good reasons to support, the more it departs from the actual epistemic and motivational commitments of real-world Eliza. The challenge is to provide a normative justification for a conception of justice that still is able to ‘speak’ to real-world Eliza and to drive her toward accepting such a conception of justice. In other words, public justification must be actually achieved and, at the same time, be based on good reasons.22 Along these lines, Gaus criticizes Rawls for the alleged inability of his account of political liberalism to establish an adequate balance between these two dimensions of public justification, the ideal acceptability and the actual acceptance of principles by real citizens here and now. Gaus claims (1996: 130–136) that political liberalism, in the effort to eschew epistemological and metaphysical disputes, gives up the normativity of justification altogether. According to Gaus, even though Rawls has no intention of defending any version of populism, his account of political liberalism, dispensing with an exhaustive account of the epistemic and normative aspects of the justificatory procedures, ends up being pretty similar to those populist  “the ideal of public justification itself has both a prescriptive and a descriptive element. Public justification theorists want public justification to be actually achieved and to be based on good reasons,” D’Agostino and Vallier (2014: 33). 22

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accounts that look for a theory of justice that can be consistent with citizens’ motivational sets, without the introduction of sound philosophical arguments that might intervene and improve these motivational sets. In other words, common sense epistemic norms are too tied down to our fallibility as epistemic agents, endangering the chances to achieve a legitimate and normatively attractive conception of justice. The epistemological abstinence that characterizes Rawls’s political liberalism implies for Gaus an irrecoverable normative weakness, because Rawls’s account would not be able to provide citizens with adequate reasons for recognizing the validity of ideal arguments when facing disagreements over political matters. If the epistemic criteria of acceptability are drawn only from common sense, rather than established through an epistemological analysis, then, the argument goes, it is impossible to prevent the collapse of the normative arguments for acceptability over the quest for actual acceptance.23 Gaus assumes that public justification approaches that rely too much on common sense reasoning end up losing any properly justificatory power. Since agents are often epistemically lazy, stubborn, unreasonable, incoherent, and so on, grounding the chances of achieving public justification solely on an actual assent thesis produces a refined version of justificatory populism.24 Gaus maintains that any account of liberal legitimacy that gives priority to the actual assent to (C) by real citizens over the possibility of establishing good normative reasons in favor of (C) is irredeemably weak from an epistemological perspective, since it rests on common sense reasoning, rather than carving out a theory about the adequate epistemic commitments that citizens should share. By contrast, his justificatory liberalism, although rejecting strong forms of epistemic externalism, is clear in assuming that epistemic justification is open, not closed, therefore counterfactual arguments are available to agents for showing others that a reason (R) supporting a moral demand is indeed justifiable for them, given their doxastic systems of belief, even though they have a hard time actually accepting (R). Justificatory populism may look attractive for a conception like mine, in the sense that it seems in line with the epistemic commitment that citizens ought to treat one another as putative epistemic authorities. Since justificatory populism relies on actual assent by citizens, no external opinions or justificatory reasons are imposed  “I have argued that Rawls and Macedo advance a populist theory of public reasoning: Genuine public reasoning is characterized as what is sanctioned by commonsense reasoning. This, I have argued, is not an accidental feature of political liberalism, but arises directly out of the aim to articulate a stable conception of justice, the justification of which citizens will be able to appreciate and by which they will be convinced. But overwhelming evidence indicates fundamental divergences between commonsense-sanctioned inferences and normatively appropriate inferences. Consequently, Rawls’s and Macedo’s populist theory of public reason can generate arguments that are widely accepted but are not justificatory, while arguments that are based on shared bridgehead norms may be resisted by many,” Gaus (1996: 136). 24  Christopher Eberle (2002: 200) defines populist versions of liberalism in this way: “take citizens as they are: the default populist position is that a rationale R counts as a public justification only if the members of the public find R acceptable in light of their existing [subjective motivational sets], irrespective of their epistemic pockmarks and doxastic defects.” 23

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on them, running against their reflexive autonomy. However, I agree with Gaus that a populist account of public reasoning assumes a too closed version of justification, completely overlooking the social and diachronic aspects of the processes of belief formation and the epistemic role of disagreement in providing agents with reasons for at least re-evaluating the tenability of their contested beliefs. Assuming a populist version of public justification implies letting go of any deliberative ambition for the liberal theory, assuming that citizens’ systems of beliefs and reasons are static and inflexible. Luckily, the ordinary democratic practices are a good – even though far from perfect – proof that citizens do engage in intersubjective exchanges and that they can find ways to establish quite stable agreements, notwithstanding their widely different sets of beliefs, reasons and values. It transpires, then, that justificatory populism should be rejected as it attempts to resolve the justificatory dilemma of liberalism by completely silencing the philosophical-­idealized horn, neglecting legitimate progressive aspirations for a liberal conception of justice. The voluntaristic dimension of liberal legitimacy is indeed important, but it cannot fulfill the entire justificatory task of liberalism. We need a conception of public justification that, while respecting the autonomous reflexive agency of the agents involved, does not accept as validating justifications that simply rest on citizens’ opinions, without engaging in a normative analysis assessing which moral and epistemic commitments citizens do in fact have or should adhere to. Gaus, defending a conception of public justification that rests on openly justified demands, allows a certain degree of relevant idealizations. He maintains that the idealizations assumed by justificatory liberalism are more adequate than the ones employed by Rawls (PL) or Macedo (1990a, b). The acceptability requirement is characterized by Gaus referring to the idealized notion of a Member of the Public (1996: 162–166; 2011). A Member of the Public represents an idealized version of an actual member of the constituency. Gaus (2011: 26, emphasis in original) defines a Member of the Public as follows: “a Member of the Public deliberates well and judges only on the relevant and intelligible values, reasons, and concerns of the real agent she represents and always seeks to legislate impartially for all other Members of the Public. The moral rules (giving rise to imperatives) that a Member of the Public endorses are the ones that as a moral person she has sufficient reason to endorse. That is, we characterize a Member of the Public by reflecting on her reasons as a specific moral person with her own reasonable values and aims, and who seeks in good faith to legislate moral rules for all.” Gaus claims that Members of the Public are idealized counterparts of actual members of the public, but they are not so idealized that their reasoning is inaccessible to their real-world counterparts. In other words, Members of the Public maintain the doxastic-relative perspective of citizens as a starting point, but it is assumed that these members’ epistemic and moral attitudes are partly idealized. The idealizations introduced by Gaus are helpful in avoiding epistemic defects while attempting to achieve a normatively biding public justification of (C). Further, a Member of the Public is able to act (and reason) impartially while confronting other members of the constituency over political matters and to respond to the demands of morality

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that impose treating all as free and equal. Thanks to these idealizations it is assured that morally indecent positions, such as the norm that ‘it is right to inflict pain gratuitously on another person’, are cast out from the domain of publicly justifiable norms. In this sense, the main goal of Gaus’s liberalism is justificatory, that is, showing that the moral demands we direct to one another while attempting to publicly justify (C) should prove to be openly justified to every member of the justificatory constituency.25

5.3.4 How to Maintain Integrity: The Distinction Between Intelligible and Accessible Reasons Gaus  and Vallier (2009), along with other theorists (Audi & Wolterstorff, 1997; Bistagnino, 2013; Eberle, 2002; March, 2009; Neal, 2009; Räikkä, 2007; Weithman, 1997), problematize the issue of individual integrity within the debate about public forms of justification of liberal conceptions of justice. The debate over individual integrity relates to the inquiry about whether the deliberative requirements derived from the ideal of public justification impose more burdensome constraints on some members of society rather than on others. It is a matter of fact that some comprehensive doctrines doxastically held by individuals are less compatible with a general liberal framework than others. Rawls himself, with the introduction of the proviso (1997), acknowledges that too demanding deliberative constraints imposed by the ideal of public reason might end up running afoul of the inclusivity goal of liberalism. For this reason, citizens should be allowed to refer to their comprehensive beliefs when they are engaged in public reasoning, provided that they are also able to offer public reasons in support of the same policy if asked. Consistently with my methodological attempt to develop a liberal model of legitimacy compatible with the actual circumstances of justification, it is important to underscore that deliberative requirements that excessively restrict the liberty of agents to employ their non-public reasons within the public discourse might impair their ability to conduct their social life with integrity. In fact, imposing too onerous public justification constraints, requiring agents to introduce reasons ‘from nowhere’, implies that citizens are constrained to avoid reference to the ultimate reasons that justify their actions and epistemic commitments, in order to misguidedly formulate their arguments in a language accessible to others. This means that if citizens can only reason together offering one another shared reasons, the majority of citizens would be constrained from appealing to comprehensive reasons that they strongly believe. However, since liberalism is committed to the protection of  “The aim of justificatory liberalism is not so practical: The fundamental goal is to live up to our commitment to justify our demands on others, and this can be accomplished by a philosophical argument that fails to convince many, yet is openly justified to all,” Gaus (1996: 162). For a very valuable summary of Gaus’ model of public justification as defended in The Order of Public Reason (2011), see Baccarini (2013). 25

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individual integrity along with the respect of citizens reflexive agency, political versions of liberalism ought to establish deliberative requirements that do not endanger peoples’ moral and epistemic integrity in a faulty way (Vallier, 2014a: 85–90).26 In order to respond to this conundrum, the first step relies on the possibility of defending a convergence model of public justification, as I have already noticed. Given the modest relativism of reasons grounded in the agent-relative epistemic perspective, it makes sense to assume that different agents would assume epistemic commitments in favor of coercive act (C) for different agent-relative reasons. Looking for consensual agreement over the justificatory reasons for (C) seems quite out of reach, given the actual circumstances of justification. A convergence model, instead, is sensitive to the agent-relative reasons adduced by citizens, therefore proving more inclusive and also more consistent with the nonideal circumstances of justification. Citizens who take part in public processes of justification for (C) are not compelled to establish an agreement over which sufficient reasons we have in favor of (C). In other words, citizens, while converging on the legitimacy of (C), can address one another with reasons that are sufficient for them, given their own doxastic systems, even though these reasons are epistemically void for others (Gaus, 2011; Gaus & Vallier, 2009; Vallier, 2011b). The second step concerns an analysis of the justificatory reasons that agents can offer while engaged with others in public processes of legitimation. Gaus and Vallier claim that agent-relative reasons, in order to be valid justificatory reasons in a convergence model, ought to be intelligible to other members of the constituency. The reason Re maintained by Eliza is intelligible for George if and only if George recognizes that Eliza is justified in holding Re, given her doxastic set of beliefs, and he also acknowledges this reason as an adequate reason for action from Eliza’s point of view. A reason can be intelligible to George without the need for George to consider this reason valid within his system of beliefs. Agents that accept other agents’ reasons as intelligible are able to acknowledge that their own point of view is not necessarily shared by others, therefore assuming an intellectually modest attitude while deliberating with others.27

 “There is a form of duplicity involved in formulating one’s arguments in terms that one does not really believe in, and which do not really allow one’s interlocutors to understand one’s deeper motivations in arguing for this or that policy. Such duplicity is difficult to square with the norm of respect. It is at least arguable that it is more respectful of one’s deliberative interlocutors to reveal the real grounds of one’s positions. A norm of intelligibility, rather than a norm of ‘shareability’ or ‘mutual acceptability’ seems better suited to this,” Weinstock (2017: 647). 27  “A’s reason RA is intelligible for member of the public P if and only if P regards A as epistemically entitled to affirm RA according to A’s evaluative standards. The intelligible reasons requirement, then, holds that A’s reason RA can figure in a justification for (or rejection of) a coercive law L only if it is intelligible to all members of the public. To qualify as justificatory, intelligible reasons need only be those that members of the public can see as reasons for those who advance or rely upon them, as opposed to mere utterances and expressions of irrational bias,” Vallier (2016a: 596–597, emphasis in original). 26

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A model of public justification that looks for shared reasons, in a sense assumes that the incompatibility of agents’ doxastic systems can be overcome. By contrast, assuming intelligibility as a sufficient condition for reasons to be employed in a functioning public debate over political norms implies that we take deep disagreement seriously. Eliza is not required to ‘translate’ her reasons into public ones, it is instead sufficient that her reasons Re establish epistemic commitments that are consistent with her wider set of beliefs and that are validly supported by the evidential background she has access too. Epistemically reasonable agents are those who understand the relevance of engaging in a public debate where even reasons that are utterly incompatible with their personal comprehensive views can still be apprehend as intelligible, hence respecting other people’s opinions and avoiding any factious attempt to impose their own perspective on the public. Convergence models accept the limits of the practice of public justification, that is, given the pervasive disagreement that characterizes our social life, it is reasonable to expect decision-making procedures to be able to overcome disagreement of the first level (i.e. conflicts over specific decisions, laws, coercive acts) while accepting divergences of the second-level (i.e. disagreement over the reasons supporting publicly justified political decisions). If Eliza and George converge on the legitimacy of norm (L), as long as the agent-relative reasons they employ to justify (L) are intelligible to others, then (L) is publicly justified. Once decision-making procedures are established and justified, and assuming that citizens tend to commit to a loose liberal background framework (Gaus would say that they adhere to the idealized model of Members of the Public respecting rules of social morality), it is then possible to define the intersubjective practices of public justification as “patchworks of private reasons, without appeal to a shared fund of justificatory reasons” (Vallier, 2016a: 597, emphasis in original). In order to better understand the intelligibility requirement, it is important to illustrate the other candidate for a public justification requirement: the accessibility constraint. Accessibility is a more demanding criterion than intelligibility, since it requires George to assess the adequacy of reason Re employed by Eliza not in light of evaluative standards available to Eliza starting from her doxastic system of beliefs, but rather through evaluative standards that ought to be shared publicly. The accessibility requirement, in a sense, attempts to mitigate the relativism of reasons fully accepted by the intelligibility requirement. Indeed, Eliza and George can still support norm (L) for different reasons, yet they do not need to put themselves in each other’s shoes in order to evaluate the adequacy of the justificatory reasons that others introduce in public debates, since the evaluative standards must be shared.28 The intelligibility requirement allows Eliza and George to diverge both on the reasons they introduce publicly in support of (L) and on the evaluative standards they  “While accessibility permits reasons to differ (A might and B might not endorse RA), it requires that they be evaluated as reasons according to evaluative standards that are shared. […] Accessibility Requirement: A’s reason RA can figure in a justification for (or rejection of) a coercive law only if RA is accessible to all members of the public,” D’Agostino and Vallier (2014: 15, emphasis in original). 28

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employ to establish the adequacy of reasons in support of (L) – recall for example Goldman’s (2010) illustration of the factual relativism concerning the epistemic norms that characterize our social life. I agree with other scholars (Audi & Wolterstorff, 1997; Vallier, 2014a; Weinstock, 2017) that the accessibility requirement cannot be assumed as an adequate deliberative constraint for a model of public justification. First, this requirement appears too onerous, given the actual epistemic circumstances of justification.29 Second, as we have seen, a too onerous requirement, pressing individuals to share evaluative standards that in reality very often they do not share, can involve an excessive restriction of their liberty and agential autonomy, thus endangering their personal integrity. For these reasons, I agree with Gaus and Vallier that the intelligibility requirement is the most adequate to employ in deliberative settings over contested political decisions.30 The intelligibility requirement is compatible with an open account of justification, that is, an intersubjective model of justification that is relative to agents’ doxastic perspectives but that allows for counterfactual reasoning in order to show agents that they may have good reasons to support reasons of justice that they currently do not include in their doxastic systems of beliefs. According to open justification, agents’ epistemic commitments are grounded in their doxastic sets, but there is always room for improvement, changes of heart, revisions of some beliefs and/or epistemic standards, etc. in the light of the deliberative exchanges with fellow citizens with whom they share the co-authorship of political decisions. We can claim that from an epistemic perspective, the notion of open justification expresses the attempt to find a balance between the philosophical and voluntaristic dimensions of political legitimacy, since justificatory procedures are anchored in an agent-relative perspective, therefore respecting the doxastic presupposition and our intrinsic fallibility qua human beings, and yet the justification is not tied down to common sense epistemology, since moderate idealizations are employed. Further, the notion of public justification, when instantiated by a convergence model relying on the intelligibility requirement, fully respects agents’ reflexive agency and allows them to maintain their integrity, both morally and epistemically, while deliberating over political matters.31 In assuming what Gaus refers to as a weak form of externalism of reasons, it appears that the intersubjective context of deliberation plays a fundamental role in showing individuals which reasons they support may require reform or the end of support altogether. The final judge are still the agents, but is important to highlight

 It is worth observing that the intelligibility, accessibility and shareability requirements would identify the same set of reasons as justificatory for (L), if public justificatory arguments are developed assuming an idealized version of citizens that agree both on evaluative standards and on sufficient justificatory reasons. For a wider analysis of this issue, see Vallier (2014a, 2016a). 30  For an interesting attempt to rescue the accessibility requirement as the most adequate one within Rawlsian versions of political liberalism, see Badano and Bonotti (2020). 31  For an analysis of the relevance of preserving agents’ moral and epistemic integrity while managing political conflicts through the appeal to the virtue of social toleration, see Galeotti and Liveriero (2021). 29

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that the counterfactual assumptions that may push for a revision of some features of their doxastic systems are debated during intersubjective exchanges. This conclusion is very important and perfectly compatible with my proposal for distinguishing between a properly justificatory aim for the ideal phase of the liberal legitimacy paradigm and a more deliberative dimension of the nonideal phase. Now, as I previously claimed, Gaus does not share my attempt to clearly distinguish between two phases of the liberal model of political legitimacy, yet he introduces a few characterizations of public justification that highlight the political relevance of deliberative procedures. Illustrating these features will be the focus of the next two sections of this chapter.

5.3.5 Victorious and Undefeated Public Justifications In analyzing justificatory discourses, Gaus distinguishes between three kinds of public justification: i. victorious justification32; ii. unvictorious, but undefeated justification; iii. Defeated justification. Because our doxastic systems are so complex (and often chaotic) and evaluative disagreement so entrenched, most public justificatory processes produce unvictorious, but undefeated justifications. However, optimistically, we can also recognize that liberal theory has had some fundamental victories over time, such as victoriously establishing the inadmissibility of slavery or the normative commitments toward a universal theory of human rights. Convincingly, these victories represent the fixed points of the loose liberal framework that is the focus of the ideal phase of the theory. Yet, it is also true that once we abandon the ideal phase, the specific interpretation of the normative commitments derived from these fixed points or the best way to implement and realize these commitments are again objects of disagreement among citizens and representatives. In this sense, it is important to stress, as Gaus does, that more often than not public reasoning conduces to inconclusive conclusions. Further, Gaus distinguishes between indeterminacy and inconclusiveness (1996: 151–154). An inconclusive justification is a public justification that, although undefeated, cannot be established as victorious, since the considerations justifying (L) are inconclusive, that is, they are good justificatory considerations, but not definitive, since agents tend to support different interpretations of the same justified inconclusive consideration. By contrast, indeterminacy is the outcome of justificatory processes in which no public considerations can be provided in order to justify either the acceptance or the rejection of a belief that p. Therefore, the set of beliefs and values already justified is indeterminate with regard to the acceptance or rejection of the belief that p. Gaus argues that one of the most important goals of public reasoning is avoiding indeterminacy (2011: 36–52, 303–333), since political deliberation is relevant in its  Gaus (1996: 144–150) argues that public justifications, to be victorious, should satisfy three epistemic requirements: i. being undefeated; ii. meet the publicity condition; iii. Attain a high standard of proof. 32

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adjudicating function. For what concerns inconclusiveness, instead, Gaus is aware that it is impossible to eliminate it in public deliberative settings, since public inconclusive justifications are exactly the most likely outcomes of decision-making procedures that fully respect agents’ reflexive autonomy. I agree with these conclusions by Gaus. I defend a justificatory paradigm according to which, once citizens converge on the validity of the loose normative framework publicly justified through the appeal to moderate idealizations, different interpretations of the basic values and evaluative standards extrapolated from the normative framework are available as acceptable options in public debates. The option that ends up being selected by an adequate process of public reasoning can be defined as robustly justified, being undefeated, but not ultimately victorious over other options.33 Similarly to my proposal, Gaus assumes that public justification is a scalar property, therefore allowing of degrees and different standards of proof with regard to different objects. We can therefore distinguish between a higher standard of proofs, namely, the need for a conclusive public justification for establishing the validity of basic rules and general ideals grounding a shared social morality and, instead, an ordinary practice for inconclusively justifying “middle-level social-moral objects” (2011: 113). Understanding the public justificatory practice as a scalar affair, rather than an all or nothing enterprise is relevant, for in this way we can make sense of the intrinsic revisability of our intersubjective processes of justification and confrontation, while assuming some fundamental liberal tenets as fixed points.34 Accepting the likelihood of inconclusive reasoning is not a defeat, but rather is the proof that the fight for justice is a never-ending enterprise and that we ought to be intellectually modest when we address other parties while we are engaged in public justification practices. To sum up, I engage with the terminology introduced by Gaus to better express the different standards of proof for public justificatory processes in the two phases of my model of liberal legitimacy. The ideal phase, focusing on the justification of the loose normative framework, employs modest idealizations and abstractions to provide a public, hopefully conclusive, justification of political liberalism’s evaluative standards and basic values. In the nonideal phase this very same loose normative framework is again subjected to public (inconclusive) reasoning over which is  “The idea here, then, is that the concept is a highly abstract notion on which there may be agreement (or, in my terms, it may be victoriously justified). But numerous interpretations (conceptions) are advanced, each articulating the core abstract idea in a different way, none of which is victorious over the rest. This would be a paradigm case of nested inconclusiveness,” Gaus (1996: 158). Along these lines, let us recall Rawls’s comment about the possibility that reasonable citizens agree on the validity of a political concept while disagreeing about different conceptions of justice that can be derived from the very same political concept. 34  “In developing an account of liberalism, our first aim is to show that fundamental liberal principles are victoriously justified—that the case for them is conclusive. To accomplish this, we formulate a theory of liberalism. Our theory of liberalism can accomplish its task of showing that liberal principles are conclusively justified without showing itself to be conclusively justified. Our concern is the conclusive justification of substantive liberal political principles, not the conclusive justification of any specific philosophical theory of liberalism,” Gaus (1996: 178). 33

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the best interpretation of these liberal basic tenets or about which are the normative commitments that should follow from them. This implies that democratic ordinary practices may contingently legitimate political decisions that are indeed incompatible with the normative liberal framework. In these instances, political contestations, judicial reviews, parliamentary confrontations are the standards of lawful means to fight against political decisions that are incompatible with the liberal loose background framework. This ex-post means for criticizing formally legitimate democratic decisions tends to appeal to the normative commitments we share as members of a liberal-democratic society. In this sense, these ordinary democratic processes of contestation show us that political liberalism does provide normative criteria through which to assess political reasoning and propose progress-oriented reforms, thereby avoiding a collapse in a form of justificatory populism.

5.3.6 The Adjudicating Function of Public Reason As final argument for this chapter, I want to address a general criticism raised against the thesis, supported by both political and justificatory forms of liberalism, that the standard of proof of public justification for the legitimacy of a general liberal framework is higher than that applied to ordinary democratic decisions and laws. The critique maintains that the higher standard of public justification is too demanding and that, realistically, not even very general liberal tenets can be ultimately and conclusively justified. Rawls is aware of this pressing issue and he actually admits that public justification alone cannot provide a stable adherence to the liberal framework, if not coupled with a contextualist strategy that shows how the liberal-democratic practice itself, when well-functioning, provides reasons to citizens to adhere to liberal normative commitments (1980; PL). It follows that the background liberal framework is not entirely justified publicly, since the justificatory procedure embeds a contextual analysis of historical and sociological circumstances as well (D’Agostino, 1996). This conclusion is in my opinion valid and perfectly consistent with the Rawlsian project. Indeed, the analysis I have provided of the justificatory role of reflective equilibrium is useful for understanding how properly justificatory arguments in favor of the loose liberal framework can be coupled with a contextual practice-dependent analysis of the normativity that is inherent in the ongoing institutional practice. Gaus too replies to this criticism that questions the actual chances of establishing a perfectly public justification of the liberal core tenets, once we accept the epistemic and motivational limits we share as fallible agents. He does so with a strategy very different from mine  – or Rawls’s. He assumes the existence of sociological models of cooperation that provide us with sound reasons in support of an understanding of human beings as social creatures tending toward an agreement over the

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validity of shared social norms (2011: 303–333, 389–408, 424–447).35 Against this backdrop, Gaus introduces a further argument to press for the (sociological) legitimacy of functioning political institutions, that is, their essential role in adjudicating public conflicts. Fully rational agents, the argument goes, acknowledge that the adjudicating function played by political authority makes this authority appealing vis-à-vis circumstances in which social conflicts are not resolved for lack of a publicly legitimate authority. Agents will keep disagreeing about which is the best resolution to the conflict at stake, yet the fact that agents are already embedded in an institutional context is relevant, since one of the legitimizing reasons in support of the institutional setting itself is exactly its ability to adjudicate conflicts. Everything else being equal, a social strategy to adjudicate disputes is better that an unrestrained conflict in a no-authority setting. Gaus, thereby, replies to the criticism against the possibility of publicly justifying a background liberal framework assuming that one of the reasons to validate the legitimacy of this normative framework is the recognition, by all the Members of the Public, of the fundamental adjudicating function played by public reason. Even if it is true that, more often than not, in the ordinary democratic practices, it is not possible to reach a conclusive public justification to select one option among the contested political proposals, the legitimation dimension anchored in the adjudicating role of democratic institutions remains valid. In fact, Gaus argues, it is possible to develop an argument showing that an idealized version of citizens would agree on the value of social commitments toward the resolution of conflicts, even in cases where this resolution does not favor their own preference. In other words, even when citizens keep disagreeing about which political decision is the best option available, their conflict is contained by a more general meta-agreement that some public resolution to the conflict is better than none.36 An argument for the legitimacy of political authority grounded in the ability of political institutions of favoring peaceful coexistence notwithstanding constant conflicts reaffirms one of the basic tenets of the social contract-liberal tradition (Hobbes, [1651] Hobbes, 1994; Locke, [1689] Locke, 1988). This argument provides a pro tanto justification for one of the basic motivational drives for entering into an institutional setting. Naturally, this pro tanto rationale supporting a general argument for the legitimacy of political authority becomes significant when it obtains support by a wide section of the constituency. To achieve this support, it is important to remark the successful adjudicating role that political institutions play in ordinary democratic practice (Galston, 2010; Gray, 2000; Williams, 2005). According to this general picture of public reasoning, citizens are able to respect inconclusively justified  “The convergence of sociological models of cooperation and studies of deontic reasoning is striking: following deontic rules and detecting cheaters seems absolutely fundamental to understanding humans as social creatures,” Gaus (2011: 131). 36  “If no proposed scheme can be publicly justified over the others, but all fully rational persons would agree that some scheme is better than the Hobbesian condition of no settled property at all, then recourse must be had to some decision procedure to select a scheme to be enforced,” Wall (2010: 128). 35

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norms and decisions that they personally consider sub-optimal, since they recognize that adjudicating conflicts is one of the most important conditions for a socially peaceful coexistence with fellow citizens. Granted the pervasive disagreement that characterize liberal societies, democratic adjudicating processes are the most successful in selecting and validating political decisions that, while avoiding indeterminacy and constant conflict, respect the agential autonomy of those subjected to those decisions. The respect for the agential autonomy of members of the constituency is satisfied even with regard to the perspectives that are defeated during the adjudication processes. In fact, no one should be pressured into a posture of epistemic deference toward the publicly selected option. Indeed, in the ordinary practice of decision-making most if not all political decisions rely upon undefeated, but inconclusive, public justifications.37 Democratic procedures of decision-making along with judicial processes to resolve conflicts that have not been adjudicated through ordinary practices constitute an effective paradigm for addressing public conflicts among subjects holding very different preferences, interests and conceptions of the good. The goal of these processes is to resolve the conflict peacefully, and possibly justly, providing a robust enough – even though not victorious – justification for the option that ends up being selected by this complex bundle of decision-making procedures. Robustness is not always guaranteed. Think about instances of political institutions being procedurally faulty or about majoritarian decisions running afoul of the background liberal framework of values and evaluative standards. Yet, it is important to keep in mind that robustness is a scalar concept, that is, it can be attributed in degrees. Ideally, every public justified democratic decision should satisfy a maximal robustness requirement vis-à-vis as many agents’ private doxastic perspectives as possible. However, the maximal robustness requirement plays the role of a regulative ideal, rather than that of a strict condition to meet. As we have seen, in the ordinary practice of democratic decision-making and confrontation, most decisions are inconclusively justified, since the justificatory reasons in support of these decisions are not assumed as victorious reasons by citizens, but more simply as undefeated reasons. This implies that this model of public reasoning allows further room for (a not disruptive) disagreement among citizens, thus proving more consistent with the actual circumstances of justification and not imposing unjustifiable forms of epistemic or moral deference upon any member of society. To conclude, I maintain that while a more demanding account of public justification applies in the ideal phase of theory, when we are engaged with the justification of the basic liberal tenets, in the nonideal

 Similarly, Robert Talisse (2013) contends that it is important to provide epistemic reasons to show why the legitimacy of democratic decisions can be upheld also by members of the constituency that privately consider some of these decisions as unacceptable. In his investigation, Talisse distinguishes between strictly epistemic reasons and moral and prudential reasons for respecting the legitimacy of a collective choice that privately I do not evaluate as justifiable. “The folk epistemic argument has a deontological flavor; it says that we should sustain our democratic commitments in order to satisfy the obligations that are internal to our role as epistemic agents,” Talisse (2013: 513). 37

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phase, instead, the ordinary democratic practices of decision-making and the adjudicative mechanisms should satisfy a robustness requirement rather than a public justification one. This complex picture calls for a flexible public reason practice, in which decision-­ making and deliberative processes are open to citizens’ private reasons and where compromise-based resolutions to conflicts are welcomed as valid outcomes. The focus of the next chapter will specifically be expanding on these intuitions and defending compromise-oriented approaches to liberal deliberation. For now, let me briefly hint at why principle-based compromises can be described as valid outcomes of democratic reasoning relying on the adjudicative function of public justification that I have just illustrated. Assuming the fact of pluralism, there then arises a practical need for establishing satisfying public procedures for adjudicating disputes and avoiding endless conflicts and social disruption. In order for adjudicating procedures to be efficacious and able to gain support from a majority of citizens, decisions assumed through these procedures should prove robust vis-à-vis as many doxastic perspectives as possible. Further, these decisions, in order to be legitimate not simply as factually accepted by members of the constituency, but rather identified as acceptable decisions, should respect procedural and normative constraints that are extrapolated from the loose liberal framework publicly justified in the ideal phase. Citizens, in taking part in the democratic game, show, at least implicitly, an adhesion to the social goal of political adjudication in highly conflictual contexts. In fact, reasonable citizens are those that acknowledge that democratic processes, even when not fully satisfactory from their private perspective, are still better than unrestrained conflict. From these premises it possible to build up a model of public adjudication of conflicts that assumes compromise as the most suitable goal for both the ordinary democratic practices of decision-making and the parliamentary process.

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Chambers, S. (2010). Theories of political justification. Philosophy Compass, 5(11), 893–903. Christiano, T. (2008). The constitution of equality. Democratic authority and its limits. Oxford University Press. Cohen, J. (2009). Philosophy, politics, democracy: Selected papers. Harvard University Press. D’Agostino, F. (1992). The idea and the ideal of public justification. Social Theory and Practice, 18(2), 143–164. D’Agostino, F. (1996). Free public reason: Making it up as we go. Oxford University Press. D’Agostino, F., & Vallier, K. (2014). Public justification, stanford encyclopedia of philosophy (pp. 1–44). Eberle, C. J. (2002). Religious conviction in liberal politics. Cambridge University Press. Enoch, D. (2010). How objectivity matters. In R. Shafer-Landau (Ed.), Oxford studies in metaethics (Vol. 5, pp. 111–152). Oxford University Press. Enoch, D. (2011). Taking morality seriously a defence of robust realism. Oxford University Press. Estlund, D. (2008). Democratic authority. A philosophical framework. Princeton University Press. Galeotti, A. E. (2011). Equal respect. A fundamental principle of liberal democracy. Nordic studies in education, 31(2), 127–138. Galeotti, A. E., & Liveriero, F. (2021). Toleration as the balance between liberty and security. The Journal of Ethics, 25, 161–179. Galston, W.  A. (2010). Realism in political theory. European Journal of Political Theory, 9(4), 385–411. Gaus, G. F. (1996). Justificatory liberalism: An essay on epistemology and political theory. Oxford University Press. Gaus, G. F. (1999). Reasonable pluralism and the domain of the political: How the weaknesses of John Rawls’s political liberalism can be overcome by a justificatory liberalism. Inquiry, 42(2), 259–284. Gaus, G. F. (2011). The order of public reason. Cambridge University Press. Gaus, G., & Vallier, K. (2009). The roles of religious conviction in a publicly justified polity. Philosophy & Social Criticism, 35(1–2), 51–76. Goldman, A. (2010). Epistemic relativism and reasonable disagreement. In R.  Feldman & T. A. Warfield (Eds.), Disagreement (pp. 187–215). Oxford University Press. Gray, J. (2000). Two faces of liberalism. Polity Press. Habermas, J. (1996). Between facts and norms: Contribution to a discourse theory of law and democracy. MIT Press. Hobbes, T. (1994). In E. Curley (Ed.), Leviathan. Hackett Publishing Company. [1651]. Larmore, C. (2008). The autonomy of morality. Cambridge University Press. Liveriero, F. (2020). Reasonableness as a virtue of citizenship and the opacity respect requirement. Philosophy and Social Criticism, 46(8), 901–921. Locke, J. (1988). Two treatises of government, edited by Peter Laslett. Cambridge University Press. [1689]. Macedo, S. (1990a). Liberal virtues: Citizenship, virtue and Community in Liberal Constitutionalism. Clarendon Press. Macedo, S. (1990b). The politics of justification. Political Theory, 18(2), 280–304. March, A.  F. (2009). Islam and Liberal citizenship: The search for an overlapping consensus. Oxford University Press. Mill, J. S. (1979). On liberty. Hackett Publishing Company. [1859]. Neal, P. (2009). Is political liberalism hostile to religion? In S.  P. Young (Ed.), Reflections on rawls: An assessment of his legacy (pp. 153–176). Ashgate. Nozick, R. 1974 (2001 edition). Anarchy, state and utopia. Basic Books. Parfit, D. (2011). On what matters. Oxford University Press. Quong, J. (2011). Liberalism without perfection. Oxford University Press. Räikkä, J. (2007). Political liberalism and religious ideals. Res Cogitans, 4(2), 80–94. Rawls, J. (1980). Kantian constructivism in moral theory. The Journal of Philosophy, 77(9), 515–572.

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Rawls, J. (1996). Political liberalism (2nd ed.). Columbia University Press. [1993]. Rawls, J. (1997). The idea of public reason revisited. The University of Chicago Law Review, 64(3), 765–807. Raz, J. (1998). Disagreement in politics. American Journal of Jurisprudence, 43(1), 25–52. Schwartzman, M. (2004). The completeness of public reason. Politics, Philosophy & Economics, 3(2), 191–220. Schwartzman, M. (2011). The sincerity of public reason. The Journal of Political Philosophy, 19(4), 375–398. Talisse, R. (2013). Sustaining democracy: Folk epistemology and social conflict. Critical Review of International Social and Political Philosophy, 16(4), 500–519. Vallier, K. (2011a). Against public reason Liberalism’s accessibility requirement. Journal of Moral Philosophy, 8(3), 366–389. Vallier, K. (2011b). Consensus and convergence in public reason. Public Affairs Quarterly, 25(4), 261–279. Vallier, K. (2012). Liberalism, religion and integrity. Australasian Journal of Philosophy, 90(1), 149–165. Vallier, K. (2014a). Liberal politics and public faith: Beyond separation. Routledge. Vallier, K. (2014b). On Jonathan Quong’s sectarian political liberalism. Criminal Law and Philosophy, 11(1), 175–194. Vallier, K. (2016a). In defense of intelligible reasons in public justification. The Philosophical Quarterly, 66(264), 596–616. Vallier, K. (2016b). In defense of the asymmetric convergence model of public justification. Ethical Theory and Moral Practice, 19(1), 255–266. Wall, S. (2002). Is public justification self-defeating? American Philosophical Quarterly, 39(4), 385–394. Wall, S. (2010). On justificatory liberalism. Politics, Philosophy & Economics, 9(2), 123–149. Wall, S. (2014). Perfectionism, reasonableness, and respect. Political Theory, 42(4), 468–489. Wall, S. (2016). The pure theory of public justification. Social Philosophy and Policy, 32(2), 204–226. Weinstock, D. (2017). Compromise, pluralism and, deliberation. Critical Review of International Social and Political Philosophy, 20(5), 636–655. Weithman, P. (Ed.). (1997). Religion and contemporary liberalism. University of Notre Dame Press. Weithman, P. (2011). Why political liberalism? On John Rawls’s political turn. Oxford University Press. Williams, A. (2000). The alleged incompleteness of public reason. Res Publica, 6, 199–211. Williams, B. (2005). Realism and moralism in political theory. In G.  Hawthorn (Ed.), In the beginning was the deed, realism and moralism in political argument (pp.  1–17). Princeton University Press.

Chapter 6

Compromises for a Pluralistic World

Perhaps ironically, in actual democracies working toward a binding decision, negotiations, even among cooperative antagonists, may produce more self-understanding and mutual understanding than the processes of classic deliberation, in which each party aims a consensus on the common good. Jane Mansbridge (2009: 32) What is appealing about legislative compromise is that it, on the one hand, does not purport to represent a Rousseauian general will and that it, on the other hand, gives us an alternative to the reduction of democracy to majority rule. Christian Rostbøll (2017: 629)

Abstract  In this chapter I focus on an analysis of ordinary practices for overcoming disagreement in nonidealized political settings. My goal is to show that compromises are the most common outcomes of public procedures of adjudication among disagreeing parties over political matters, rather than consensus-based decisions. If my analysis of the actual epistemic circumstances of democracy is convincing, it follows that wide-spread consensus over political decisions is an unrealistic goal for democratic settings in a pluralistic world. Against this backdrop, my analysis will show that certain forms of political compromises do however rely upon normative commitments, even though in a less straightforward way than it is usually imagined for consensus-based political decisions. The normative dimension of compromise agreements rests on the quality of the intersubjective exchange; it is a matter of relational justice, since it demands that the parties involved reciprocally respect one another. Realistically, each party tries to get as much as it can from the negotiation. Yet, we can distinguish between a principled, mutually respectful way, to negotiate with others and a dynamic in which power relations and manipulative attempts are everything that counts. Since, however, it appears quite obvious that power dynamics can deeply affect compromise, in the last section of the chapter I introduce some cautionary remarks on the possibility that principled compromises can warrant an

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adequate response to structurally entrenched asymmetries of power and to stark differences in public visibility for members of different social groups. Keywords  Principled compromise · Relational justice · Winner-takes-all-­ democracy · Structural injustices · Powerless citizens I concluded the previous chapter illustrating the adjudicating role that public deliberation is supposed to play in conflicts over political matters in liberal-democratic settings. According to this view, the legitimacy attributed to political decisions publicly justified partly depends upon citizens’ awareness that democratic decision-­ making procedures are better than other procedures in granting a peaceful resolution of conflicts while avoiding indeterminacy. In this chapter I focus on the analysis of ordinary practices for overcoming disagreement in nonidealized political settings. My goal is to show that compromises are the most common outcomes of public procedures of adjudication among disagreeing parties over political matters, rather than consensus-based decisions. If my illustration of the actual epistemic circumstances of democracy is convincing, it follows that consensus-based agreements are quite out of reach as feasible resolutions of conflicts and disagreements in democratic settings. Indeed, even assuming that reasonable citizens can reach a stable convergence on the validity of a loose normative framework of ideals and evaluative standards, we do know that the very same citizens will disagree on which is the best interpretation or implementation of these normative concepts for day-to-day political interactions. Moreover, not all the members of the constituency do accept the validity of the loose normative framework in the first place. In this regard, it is important to distinguish between two slightly different definitions of unreasonable citizens. (i) citizens may be unreasonable in the sense that they do not acknowledge as justified the loose liberal framework, therefore entering in debates with fellow citizens starting from a perspective that employs very different standards and refers to incompatible normative ideals; (ii) citizens may also be defined as attitudinally unreasonable, that is, they do not meet the moral and epistemic requirements of reasonableness while deliberating over political matters with others. The first group of unreasonable citizens is of greater concern, since this group endangers the stability of liberal institutions profoundly, as they will tend to question the legitimacy of many political decisions as much as being skeptical about the validity of the normative background framework that is instead supported by those citizens who trust liberal values. To recall the frame-painting metaphor, these unreasonable citizens conduct their lives in democratic societies while rebutting the very normative tenets at the basis of these societies and that are represented by the loose liberal frame of reasoning. By contrast, unreasonable citizens according to the second meaning contribute to make the decision-making environment more conflictual and factious, but without questioning the liberal framework at its roots. With reference to the first category of unreasonable citizens, maintaining a peaceful coexistence with them is possible thanks to a functioning institutional setting and to the availability of public forms of bargaining. These agreements are

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definitely less than ideal, intrinsically unstable and likely achieve only the bare minimum balance between conflicting forces. In other words, consistently with the traditional meaning of modus vivendi, these bargaining equilibria are stable as long as there is not a shift in the balance of social and political power held by the factions confronting one another. Since this group of unreasonable citizens is not compelled by the general norms and evaluative standards elucidated by the background framework, this implies they would not be ready to restrain themselves to cooperative requirements and justice-oriented standards when dealing with co-citizens. Hence, liberal institutions should act strategically when dealing with these citizens: maintaining peace, avoiding too harsh clashes and resorting to containment measures when needed, while reaffirming the value of liberal tenets and principles. Naturally, we can discuss whether being constantly engaged with a democratic liberal culture might have a beneficial effect on some of these unreasonable subjects in the long run, pushing them toward a more open posture toward liberalism as a value-laden political framework. This is, indeed, one of the elements of Rawls’s reasonable faith in the possibility of establishing a well-ordered society. Leaving aside the debate over the actual chances of ‘converting’ hard-core unreasonable and antiliberal citizens toward adhering to some minimal liberal commitments, what I want to stress here is that the appeal of political liberalism partly derives from its alleged ability to include the second category of unreasonable citizens in negotiating procedures that, even if not ideal, reflect a commitment toward some minimal normative standards, thereby not reducing political agreements to mere bargains between confrontational forces. Ordinary democratic practices are indeed characterized by debates, conflicts and compromise between agents holding very different attitudes toward justice, and defending personal preferences that vary on a very wide spectrum. Some citizens loyally support the liberal framework integrated within their wider comprehensive views. Some others may more simply act consistently with this loose framework proving an implicit, and probably less well-reasoned, adherence to it. Others, yet, may accept a general liberal outlook more for acquiescence than for a strong personal commitment toward it. Reasoning from a nonideal perspective, it is important to allow for a quite wide array of personal motivations that may persuade citizens to enter into normative oriented forms of political compromise. In this regard, it is worth recalling than in Chap. 3, I introduced an analytical distinction between a strictly political version of reasonableness as a civic virtue and a more compelling and far-reaching definition of philosophical reasonableness. We have seen that, as long as citizens respect the compatibility requirement (Kelly & McPherson, 2001) with the fundamental standards and values upheld by the liberal framework, this is sufficient for engage them in public deliberations over political matters that are not just mere bargains. To recall, the compatibility requirement underlies that in political settings we should assess citizens’ actions and requests at face-value, therefore evaluating whether their actions and publicly expressed preferences are compatible with the liberal framework, without the need to engage in an analysis of their most private motivations and comprehensive values. This strategy opens up political deliberative processes to include agents who privately support nonliberal views and

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conceptions of the good. And this is fine, as long as they pay respect to the basic normative commitments exemplified by the loose liberal background framework.1 The compatibility requirement is intuitively compelling. We can actually claim that institutional systems of checks and balances that keep majoritarian power at bay usually tend to appeal to some version of this requirement when establishing whether a majoritarian decision should be overruled in case of blatant incompatibility with the constitution of the state or with ratified bills of rights. In this introduction I have mentioned the notion of political compromise without clearly specifying it. The first section of this chapter will therefore be devoted to illustrate compromise as an adequate outcome of public deliberative processes. Then, in Sect. 6.2, I shall discuss some important arguments against the winner-­ takes-­all model of democracy and introduce a specific category of political compromise, that is, principled compromise. Finally, in 6.3, although defending a model of political legitimacy that defines compromise as a good practice for achieving political decisions in contexts of hyperpluralism, I will investigate the literature on structural forms of injustice to show that we ought to be cautious when evaluating the legitimacy of political compromises, since we have to count in likely unfair effects that political compromises can have on members of structurally disadvantaged groups.

6.1 Why We Need Compromise for Democratic Decisions As should be clear by now, the justificatory model I defend in this work, starting from a technical analysis of the epistemic and normative implications of the nonideal circumstances of justification, assumes wide-spread consensus over political decisions as an unrealistic goal for democratic settings in a pluralistic world. In this section my aim is to argue in favor of compromise as an adequate outcome for decision-making processes and to show that this conclusion is supported not just by pragmatic reasons (i.e. given the nonideal circumstances, it is reasonable to shift our focus from consensus-based agreements to compromise-based ones), but by normative ones as well. Compromise, as a political practice for dealing with disagreement, should not necessarily be described as a mere second-best, the only practical solution we are left with to avoid never ending conflicts once we rule out consensual  “The compatibility requirement is, in fact, widely acknowledged, and it often frames more particular debates about, for example, the proper scope of freedom of expression or association. We have suggested that a person whose doctrines are otherwise nonliberal could affirm the political status of persons conceived of as free and equal. The compatibility requirement may allow private all-male clubs, for example, insofar as their members are not attempting politically to pursue the unreasonable philosophical views they might have of women. Since (we are supposing) these views have no practical political consequence, they are, in a colloquial sense, merely philosophical. At the same time, the compatibility requirement would underlie objections to these kinds of clubs insofar as it could be shown that they violate the rights of women,” Kelly and McPherson (2001: 42). 1

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agreement as unfeasible. My analysis will try to show that compromise can achieve a lot more than simply reaching acceptable trade-offs among incompatible points of view. In order to do so, I need to show that certain forms of political compromises do indeed rely upon normative commitments, even though in a less straightforward way than it is usually imagined for consensus-based political decisions. My analysis of compromise as an adequate political solution to conflicts in democratic settings is naturally related to the general account of liberal legitimacy that I laid out in the previous chapters. Indeed, only if a majority of citizens supports the loose liberal framework, it is then possible to argue in favor of political compromise as a practice for conflict management that does not settle for an unstable and power-balancing bargaining process. This conclusion is relevant for the general framework I defend in this work, since it stresses the significance of reaching a stable reflective agreement about the validity of the loose liberal framework as a condition of possibility for establishing principled forms of political compromise.

6.1.1 Epistemic and Pragmatic Reasons in Favor of Compromise Consent-oriented approaches to deliberative democracy assume a quite demanding normative framework of deliberation as a starting point. Many authors (Bohman & Rehg, 1997; Cohen, 2009; Habermas, 1996; Martì, 2006, 2017) argue that adequate deliberative procedures grant important epistemic results: (i) widening the informational pool; (ii) introducing a vast array of perspectives to confront each other; (iii) amending defective reasoning through the confrontation with others. Moreover, the basic intuition in support of consent-oriented approaches is that individuals engaged in deliberative processes tend to modify their preferences in the light of the deliberative exchanges of information, experiences, opinions, and so on, therefore making a consensual decision not completely out of reach. It is worth remembering that for traditional deliberative democracy theorists, the consensus reached in deliberative settings is illustrated as the ideal consensus that better-versions-of-ourselves would strike within perfectly laid out deliberative settings. As for traditional versions of political liberalism, the ideal counterpart of the theory plays the most essential justificatory role, providing the regulative ideal for nonideal practices. Even though extremely appealing from a theoretical perspective, consent-­ oriented approaches have been criticized for assuming a too idealized account of both agents’ epistemic attitudes and their motivational drive. For example, some authors have suggested that deliberative constraints ought to be loosened, in order to allow for self-interest to be included within deliberative procedures (Mansbridge et al., 2010). Others have more recently argued in favor of partisan reasoning to be included as not only a crucial, but actually a fruitful, dimension of confrontational settings in the political domain (Biale, 2019; Bonotti, 2017; Rosenblum, 2010; White & Ypi, 2011, 2016; Wolkenstein, 2019). A further line of criticism maintains that focusing on consensual agreement as the only valid outcome of deliberative

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processes is indeed problematic, since very often political decisions are reached through compromise and negotiation (Bellamy, 1999, 2006, 2012; Bohman, 1996; Gutman & Thompson, 2012; Knight & Johnson, 2011; Mansbridge & Parkinson, 2012; Richardson, 2002). These criticisms of the traditional deliberative account rest on some intuitions that are close to the general philosophical approach that I defend in this work, that is, a skeptical take of too idealized models of practical reasoning and a willingness to accept the working in progress dimension of public deliberation, therefore including compromise-based agreements as welcome outcomes for democratic processes. Thus, the main goal of this chapter is to illustrate that compromise-based political agreements are welcome outcomes of complex collective decision-making procedures within democratic settings. Compromise is defined as a pragmatic solution to entrenched disagreement. A solution in which parties do not let go of their conflictual positions in the light of a common ground that in a sense tames disagreement, but rather they strategically give up their optimal preferences in order to establish a public agreement that is regarded as sub-optimal by all the parties involved, but that all find acceptable. Consistently with the social requirement of establishing public procedures to adjudicate conflicts that I discussed in Chap. 5, compromise-based agreements assume a fundamental role in deeply divided societies. However, since, by definition, compromise is a sub-optimal solution for all the parties involved, it is relevant to investigate the kind of incentives that agents may have for accepting compromise solutions to deep-rooted disagreements, instead of stubbornly persisting in the attempt of having their optimal preference established as the political solution to collective stalemates. Commonly, reasons in support of compromise are second-order reasons, that is, parties accept compromise solutions not for the intrinsic value they attach to these solutions, but rather because a political solution to stalemates and constant conflict is better that no solution at all, as long as the compromise-­based agreement is acceptable – even though not optimal – from their own perspective (May, 2005, 2011; Wendt, 2013, 2016).2 We can investigate both intrapersonal and interpersonal incentives in favor of compromise. At the individual level, subjects have all the reasons to deeply scrutinize the compromise-based agreement to assess the pro and cons of a political solution to conflict that they still consider less than optimal. Naturally, specific compromise solutions may be more acceptable for some parties than others, depending on how distant they are from the optimal preference supported by the conflicting parties. At the intersubjective level, compromise is both a final state – a public solution to conflict that should, at least partly, mirror all the position involved – and a deliberative back and forth process in which parties confront one another delimiting the leeway for what they are ready to accept as a compromise solution (Kuflik, 1979). In order to respect the deliberative  It is worth noting that in ordinary political practice, compromises are often struck by political parties and by elected representatives, rather than by common citizens. This distinction is essential to develop an exhaustive analysis of the political practice of compromise. However, the level of abstraction of my analysis of this phenomenon in this chapter does not require me to spend more time on this distinction. 2

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dimension of compromise, social practices that aim at ending conflicts through a compromise solution ought to avoid any form of coercion (be it explicit or implicit) and assure a minimal standard of reciprocity among the parties (Carens, 1979; Weinstock, 2013, 2017). Yet, it appears quite obvious that power dynamics can deeply affect compromise, since disadvantaged parties may end up accepting compromises that are not just less-than-optimal from their perspectives, but actually unbalanced political solutions that end up favoring already privileged parties. Along these lines, realist readings of compromise stress that it is utterly unrealistic to assume that the effect of power unbalances would not spill over the compromise practice, therefore making normative-driven assumptions on compromise moot, if not irrelevant. According to this approach, it is theoretically helpful to focus on pragmatic solutions to social conflicts reached via modus vivendi (Gray, 2000; Horton, 2010; McCabe, 2010; Rossi, 2010; Wendt, 2013, 2016). The incentive to reach a modus vivendi stems from the inability of all the conflicting parties to impose their first-ranked preferences upon others, since there is not a party that clearly has ultimately more power of influence (widely interpreted) than others. It is worth mentioning, as often stressed by Rawls as well, that the social practice of toleration was born in the midst of religious wars in which no party had enough power to win the war and establish its religion as the public faith of the state. It was the impossibility for any party to see a winnable way out from the war that prompted the willingness to establish toleration as a solution to religious conflicts. Even though realist approaches to compromise constitute a relevant literature and intuitively seem to represent the most consistent theoretical discussion of compromise dynamics in real-life, my aim in this chapter is to illustrate a normative view on compromise, against the backdrop of the general framework of political legitimacy that I have been outlining in this work. However, I am fully aware that unbalanced and unequal power structures put pressure on a normative account of compromise as an adequate political procedure to reach agreement notwithstanding entrenched disagreement. For this reason, in the last section of this chapter, I shall investigate the negative effects that political compromises can cast on members of disadvantaged or marginalized groups. Indeed, some disadvantaged members of the polity might end up accepting unfair compromises, given the unbalanced negotiation power that characterizes citizens in the nonideal circumstances of politics. But before assessing how nonideal circumstances can kill the fairness of compromise procedures, it is important to lay out the normative requirements (i.e. inclusiveness, pluralism, publicity) that compromise-based decision-making processes should satisfy in order to be considered legitimated. I take compromise to be a solution of conflictual stalemates in which citizens reach a collective decision that at least partly mirrors the most common and wide-spread opinions and preferences on the matter at stake. A compromise on policy, in order to receive sufficient support, should prove to be adequately responsive to citizens’ opinions and preferences. In this sense, compromise is a strategy for reaching robust collective decisions in day-­ to-­day political practice, since every party should make its contribution in shaping the compromise solution (Van Parijs, 2012).

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Normatively characterized compromises can be defined as those collective decisions that are freely supported by all the parties involved, even though no party considers this decision to be the optimal one. Still, all the parties judge the compromise-­based solution as legitimate for: (i) the issue debated requires a public solution, that is, the possibility of refraining from taking a decision is not an option – and note that the option of not taking action and letting toleration as a practical solution work at reducing the sting of the conflict is still a decision; (ii) the parties involved have assessed the trade-off stemming from their acceptance of the compromise and have established that reaching a less than optimal collective decision is better than unrestrained conflict; (iii) during the intersubjective exchange that led to compromise, parties should meet minimal constraints of reciprocal respect (Weinstock, 2017: 638). Successful compromises are viewed as valid solutions to political stalemates precisely because the parties proved ready to give reciprocal concessions while deliberating to reach a common ground. According to my reading, along with other scholars (Carens, 1979; Kuflik, 1979; Rostbøll & Scavenius, 2018), this readiness by citizens to at least acknowledge other parties’ points of view and the willingness to let go of some of their optimal preferences makes compromise more normatively characterized than usually thought. According to this interpretation, reciprocal concessions are more efficacious the more the parties show mutual respect, hence accepting to take into consideration other parties’ preferences in an attentive and substantive way. By contrast, every time the parties interpret a political compromise as nothing more than a public defeat made acceptable only by the power dynamics at play, then the agreement reached is not really stable, and many agents may have incentives to question its legitimacy and to attempt to revise it should the balance of power change in their favor. According to my paradigm, there are both epistemic and pragmatic reasons in support of compromise as an adequate strategy to deal with evaluative disagreement over matters of public interest.3 Indeed, with reference to the epistemic analysis that I have outlined in this work, we can see that a normatively characterized description of the political practice of compromise is compatible with the actual nonidealized epistemic circumstances of pluralistic societies. Reaching a compromise does not require agents to necessarily revise their beliefs or their preferences ranking. For example, Eliza can maintain that her belief that Ʊ is the optimal choice, whereas George may keep believing that the best option is Φ. And yet, they can reach a stable compromise on the third option Ψ that partly satisfies their perspectives. This procedure ratifies the attitude of intellectual modesty exemplified by Eliza and George, since both of them waive any attempt to impose their preference on others, while looking for a plausible compromise. From the epistemic perspective, normative compromise is a political solution to conflicts that involve negotiation procedures in which epistemic deference is imposed on no one – and agents do not

 For an analysis developed along similar lines, especially regarding the epistemic reasons in favor of compromise, see Bistagnino and Zuolo (2018). 3

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risk their personal integrity either (see Benjamin, 1990). In the attempt to establish a fair and stable compromise, Eliza and George prove willing to respect the other party’s epistemic authority, since every party can assess the acceptability of the proposed compromise from its own perspective and set of preferences (Rostbøll, 2017; Weinstock, 2017). In the next sections I shall distinguish between two forms of compromise, relating to different agential reasons in support of reaching an agreement. For now, I want to highlight that compromise is more than a suboptimal solution to political conflicts for at least two reasons. First, if we assume that an analysis of the actual epistemic circumstances of democracy is relevant from a normative perspective to help us in carving out a political legitimacy model compatible with the practical and epistemic status of real-world citizens, then compromise becomes a very appealing model for conflict resolution. Second, I agree with Gaus (1996, 2011) and others (Carens, 1979; Gray, 2000; Rossi, 2013; Wendt, 2016; Williams, 2005) in assuming that the adjudicative ability of democratic decision-making procedures has an intrinsic value. Against this backdrop, it appears that compromise-based agreements are a fundamental feature of adjudicative public processes.4 In democratic settings, when citizens face one another on the merit of justifying or not coercive acts in the public interest, decision-making strategies ought to: (i) avoid, whenever possible, indeterminacy; (ii) manage conflicts and disagreements respecting citizens’ standpoints and granting them equal opportunities to impact the final decision; (iii) find solutions to conflicts that at least a majority of the constituency is willing to stably support − with the caveat that any political decision is always open to possible revisions in the case of ex post public contestations and legal battles over it. Simultaneously satisfying all these requirements is extremely difficult. Yet, normatively characterized compromise seems to me to be the most realistic strategy to satisfy these requirements in pluralistic societies. Moreover, compromise strategies allow citizens to face one another presenting their unrestrained preferences, since they are not required to look from the beginning for common ground as in consensus-­ based procedures. The normative feature of compromise-based agreements does not stem from a request to citizens to bracket their personal perspective or from the assumption that deliberation would lead agents to modify their preferences. Rather, the normative dimension of compromise agreements rests on the quality of the intersubjective exchange; it is a matter of relational justice, since it demands that the parties involved reciprocally respect one another. Realistically, each party tries to get as much as it can from the negotiation. Yet, we can distinguish between a principled, mutually respectful way to negotiate with others and a dynamic in which power relations and manipulative attempts are everything that counts. Compromise strategies of the first kind may have positive effects that are independent from the fact that a stable solution to a political conflict is reached. First, negotiating processes that allow citizens to politicize their unrestrained preferences and

 “I identify the ‘first’ political question in Hobbesian terms as the securing of order, protection, safety, trust, and the conditions of cooperation,” Williams (2005: 3). 4

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interests are intrinsically useful in establishing frank confrontations between agents and in paving the way for more respectful interactions among reflexive agents (Biale & Liveriero, 2017; Gutman & Thompson, 2012). Second, in order to reach successful compromises, a majority of citizens should prove able (and willing) to overcome the frustration about the impossibility of reaching what they deem to be the optimal solution to the stalemate and consequently to pragmatically look for a second-best that is acceptable for other parties’ as well (Bonotti, 2017; Muirhead, 2014; Rosenblum, 2010; White & Ypi, 2010). Finally, compromise-based approaches to conflict resolution fully respect the intrinsically conflictual dimension of politics, doing away with more idealized conceptions that try to overcome disagreement with the goal of establishing agreements via consensus (Gray, 2000; Leydet, 2015; Manin, 2011; Mouffe, 2000).5

6.1.2 A Voluntaristic Reading of Compromise In the previous section I stressed that compromise does not simply represent the final stage of a negotiating process, rather some merits inherent to compromise practices depend upon the confrontational setting in which conflicting parties exchange reasons. As I claimed, compromise, if laid out through negotiating procedures that respect some basic normative constraints, has an intrinsic value as a process, since it establishes a procedure in which agents attempt to find a middle ground among their preferences and those of others. In highlighting this intersubjective dimension of compromise practices, we can observe that these practices better satisfy some elements of the voluntaristic ideal of liberal legitimacy than a standard consensus-looking model of deliberation (Chambers, 2010; Rossi, 2013). Why is this so? When a political decision is the outcome of a compromise process, it satisfies the dimension of political legitimacy that refers to the actual agreement among citizens. By contrast, the consensus-based model requires quite onerous idealization in order to work out a satisfactory model of liberal legitimacy. It follows that consensus-­based strategies depart quite sharply from voluntaristic intuitions about political legitimacy, since they involve relevant abstractions from reality as it is.  In stressing the conflictual dimension of political interactions, it is also important to account for an important aspect of democratic life, that is, the ex-post contestation of laws, coercive acts, a state’s demands on the citizenry and so on. Albert Hirschman, in his Exit, Voice, and Loyalty (1970), famously claimed that citizens who are not satisfied with a government’s decisions and impositions have two alternatives: either the right of exit (interpreted in its far-reaching meaning to comprehend the possibility of rebellion for cases in which the illegitimacy of a government’s acts is overt), or the chance to make their voice heard, dissenting from the political decision that is deemed unjustifiable. Many authors have discussed forms of dissent and contestation of political authority in the form of civil disobedience (Brownlee, 2012; Lefkowitz, 2007). Further, dissent can also be expressed with formal requests to be exempted from complying with specific political obligations and laws in order to maintain one’s moral integrity, as with lawful requests for conscientious objection (Ceva, 2011, 2015; Galeotti, 2011). 5

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Alternatively, we can defend compromise-based processes underscoring that they tend to mirror actual negotiation practices among citizens. Indeed, as I showed, the normative dimension of compromise does not revolve around demanding abstractions, but rather stems from the recognition by citizens that they need to establish minimally respectful interactions in order to reach a compromise that can be supported by the majority of the parties involved. When parties are not willing to even look for a compromise solution to the stalemate, this means that citizens are living in political contexts in which not even the basic dynamics of social trust and reciprocity hold.6 In the literature, the interactions among citizens who debate collectively over authoritative decisions is subsumed under the notion of the equal status that should be ascribed to every participant under the justification of the leading principle of equal respect. Along these lines, we can distinguish between the evaluation of the substantive positive spill-over effects granted by a compromise-based agreement itself vis-à-vis the risk of not finding any publicly acceptable solution to the stalemate (instrumental legitimacy) and the value that can be attached to the negotiating practice itself. According to this second dimension, compromise practices are normatively characterized when citizens are able to take into consideration other parties’ perspective in proposing solutions to the conflicts, therefore showing respect for reciprocity constraints (procedural legitimacy). Since the value of compromise practices does not rest on strong idealizations, the willingness of citizens to accept compromise-solutions depends upon the actual willingness shown by the parties to look for a middle-ground. Naturally, different parties can accept compromise-based agreements for various reasons: some may respond just to strategic incentives, some others may indeed prove reasonable, hence showing a commitment to respect fair terms of cooperation. Regardless of personal motivations, what really counts is the willingness of the parties to accept the compromise solution and to stick with it. A different reading of the voluntarist ideal of legitimacy that characterizes compromise solutions to political conflicts is provided by realist scholars, who specifically focus on the instrumental value of compromise practices in maintaining peaceful coexistence, rather than engaging in an analysis of whether compromise practices can have a procedural value as well (Gray, 2000; Wendt, 2013, 2016). According to this view, a social practice different from compromise but that achieves the same instrumentally valuable outcomes, ceteris paribus, should be considered as legitimate as compromise. Focusing on the instrumental legitimacy of compromise, this approach stresses that under circumstances of pervasive disagreement compromise is the only strategy available to maintain political order while achieving some

 “What could be valuable about compromise per se if not the fact that it is an agreement, i.e. that it is a way of tracking the presence of a certain relation between fellow citizens? So that would still be a form of voluntarism (albeit one that is introduced from the back door, as it were),” Rossi (2013: 562). 6

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important collective goals (Horton, 2010; McCabe, 2010; Wendt, 2013).7 There is something intriguing about this straightforward interpretation of the voluntaristic dimension of political legitimacy. This model focuses on which instrumentally valuable outcomes compromise allows conflictual societies to reach, while avoiding any moralizing investigation of citizens’ motives and preferences. However, one of the fundamental goals of this work is to show that it is possible to reach a balance between the voluntaristic and normative dimensions of liberal legitimacy while defending a justificatory strategy that is consistent with the nonidealized circumstances of politics. For this reason, while I agree that compromise is a valuable strategy because it does not rely upon burdensome idealizations in order to draw a path toward political agreement in the face of entrenched disagreement, I maintain that compromise strategies can satisfy the procedural dimension of legitimacy as well, when some normative constraints are respected in decision-making processes among conflicting parties (Ceva, 2016; Ottonelli, 2012). My approach, in assuming that compromise processes, if correctly laid out, can have both an instrumental and procedural value, focuses on citizens’ attitudinal posture when involved in these intersubjective exchanges of reasons with other parties. Can we argue that the habit of living in a democratic setting in which political institutions tend to play an adjudicative role is an incentive for agents to value strategies that help in finding a collective agreement as positive tools, regardless of the specific evaluation of the compromises reached through these strategies? If I can provide sound reasons for answering positively to this question, then we can conclude that my model of liberal legitimacy strikes a balance between the normative aspects of the justificatory enterprise and the voluntaristic dimension of legitimacy whose importance has been recently brought to the fore by many authors.8 Indeed, it results from my model of liberal legitimacy that reasonable citizens, who loosely converge on the validity of liberal standards and normative tenets through the justificatory stage of reflective agreement, are those citizens whom we can expect to engage in compromise strategies for reasons that transcend mere strategic motives. Further, an account of democratic decision-making centered on compromise rather than on consensus is more open to a wide array of individual motives and incentives. It also

 “Even where people do not have the same reasons, they may have their own moral, or other, reasons for acting in ways conducive to a modus vivendi. It cannot be stressed often enough that the idea of modus vivendi is in principle compatible with many different practical instantiations, including some that may not be liberal. So long as a political settlement finds a way of preserving political order that is broadly acceptable to those subject to it, then it meets the conditions for a modus vivendi,” Horton (2010: 440). 8  Enzo Rossi (2013) proposes a voluntaristic reading of political legitimacy within a wide realist approach regarding the political sphere in general. Rossi investigates whether compromise can strike a balance between “the desideratum of peaceful coexistence and the desideratum of a morally optimal set of norms and/or institutions” (p.  557). Rossi replies negatively to this query, assuming that either the theory focuses on the actual agreement reached by real-world citizens or it attempts to justify normatively laden procedures for the justification of political principles and decisions. Rossi’s investigation is compelling and well argued, however my aim in this chapter is defending an account of compromise that would allow us to respond positively to Rossi’s question. 7

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lets go of a moralized depiction of real-world citizens’ exchanges and deliberative processes. Yet, assuming the possibility that a majority of citizens can reach a loose agreement over a liberal framework ensures that we can argue in favor of normatively characterized compromises without sounding too idealistic and detached from reality.

6.2 Against a Winner-Takes-All Model of Democracy In order to properly evaluate the tenability of my proposal regarding compromise as the most adequate strategy to establish legitimate collective decisions in the face of entrenched disagreement, in this section of the chapter I shall compare two models of compromise recently debated in the literature: pragmatic compromise and principled compromise. The main criterion to distinguish between these two forms of compromise concerns the different motivational reasons in support of compromise strategies employed by individuals for deciding whether or not to engage in – and accept the solution provided by – these practices.

6.2.1 Pragmatic Compromise Pragmatic compromises are based on strategic second-order reasons. The intrapersonal deliberative process through which agents decide to accept a pragmatic compromise involves an analysis of the contingent circumstances and a means-ends reasoning in which agents assume that accepting the compromise is the best path to their goals. Since agents have a wide array of goals and preferences often mixed up, and it is unrealistic for them to expect that everyone of their goals can be achieved in a collective setting in which each of us need to coordinate with others, it appears that rational agents have important pragmatic reasons in favor of entering compromise schemes. Simon May, in his article “Principled Compromise and the Abortion Controversy” (2005), argues that agential reasons for supporting a compromise are always pragmatic reasons. An agent would accept a compromise-based agreement if and only if, when reasoning about the trade-off related to letting go of the fight for their optimal preference, they realize that the effects of their intransigent posture in refusing any compromise would be worse that the consequences of accepting a sub-optimal solution to the conflict. May insists that in the case where Eliza has the opportunity and the political power to make her first-ranked preference the object of a public agreement and if she cannot foresee any future cost in refusing to accommodate the public choice toward George’s preferences, then she indeed does not have any

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pragmatic reason to abandon her preference in favor of a compromise solution.9 If we translate this thesis to the macro-level, this approach to compromise would imply that members of a stable majority in a political society who are accustomed to hold major visibility and more opportunities to impact political decisions would not have any reason to refrain from using their influence and no incentives to accommodate minorities’ preferences and requests as long as refusing any form of ­accommodation does not involve foreseeable future high costs. The only sets of reasons that can motivate members of stable majorities to accommodate some of the requests of less powerful members of the constituency are principled ones. According to May, any principled reason employed to demonstrate that agents can have normative reasons in favor of compromise that are not just pragmatic is not morally binding. May (2005: 339–346) identifies five arguments traditionally employed to claim that there are non-pragmatic reasons in support of compromise: (i) an epistemic argument that describes the complexity of evidence as one of the main sources of disagreements among agents and the following assumption that compromise can manage these forms of disagreement; (ii) an argument grounded in the ideal of equal respect; (iii) an argument that refers to the requirement of inclusivity as a necessary feature of legitimate democratic decision-making procedures; iv. an argument about the reciprocity requirement as a commitment toward political decisions that ought to result acceptable for every citizen; v. an argument depicting a political community in normative terms, according to which citizens, as members of this political community, share a responsibility for establishing fair terms of cooperation and for selecting political choices that are compatible with different perspectives and preferences. Among these five arguments, the most relevant for us to discuss is the one grounded in the principle of equal respect and the following argument introduced by May against the possibility that the principle of equal respect may indeed provide a normative base for principled compromises. May does not refute the ideal of equal respect as one of the grounding tenets of a liberal paradigm of democratic legitimacy. However, he argues that accepting this principle does not commit us to accepting a compromise-based agreement if this agreement, all else being equal, does not guarantee us the outcome more pragmatically attractive for us. May maintains that the ideal of equal respect is procedurally exemplified by the requirement to equally include any perspective within the decision-making procedure. However, from this procedural constraint there does not follow a further requirement, that is, the request that every perspective ought to be partly included in the final agreement, as in fact a principled compromise would require.10 May concludes that from the normative requirement to equally respect every citizen does not follow any principled reason for accepting compromise solutions to political conflicts. Majority  “The simple fact that compromise involves some moral loss, however small, stands as an undefeated reason against those moral compromises that are not pragmatically necessary,” May (2005: 348). 10  “Accommodation in the sense concerning the inclusion of citizens in democratic practices should not be confused with accommodation in the sense of compromise between their political positions,” May (2005: 343). 9

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members (or members of powerful elites) that are pleased with the democratic decision Ʊ – where in fact every member of the constituency had a say and has not been mistreated as a less than an equal participant in the decision-making process – have no reasons to propose a compromise solution Ψ to defeated members of the constituency that favored decision Φ, if they do not believe they have pragmatic incentives to do so. Since some of the most contested decisions in political contexts concern evaluative matters and moral issues it is important to establish whether May’s account of pragmatic compromise comprehends moral compromise as well. May argues that a pragmatic compromise can also be defined as moral, in the case where the agreement established through compromise has important moral consequences. This conclusion may seem counterintuitive, since the standard definition of compromise assumes that every party involved accepts the compromise-based agreement even if she maintains that another solution would be the optimal one. Can then some compromises be defined as moral when every agent involved in striking the compromise believes that other options would be better, from a moral perspective? It is possible to outline two answers to this query (Wendt, 2016: 47–50). First, agents may praise for moral reasons a sub-optimal (from their perspective) moral choice when this choice assures peace and ordered coordination among conflicting parties. Moreover, once agents understand that their morally optimal choice is not an alternative as a publicly justifiable option to be imposed on the entire constituency, they often resort to pragmatic reasoning that led them to support a moral compromise.

6.2.2 Principled Compromise In clear contraposition with Simon May’s theory, Daniel Weinstock (2013) defends the view that citizens can indeed have principled reasons to strike compromises in contexts of entrenched conflict. These reasons are principled since they do not focus on the pragmatic gains obtained by agents that accept a political compromise. Weinstock outlines an account of comprise as an intersubjective practice of confrontation in which agents can be motivated to respect some normative constraints.11 According to Weinstock, and I completely agree with him, it is not possible to  Weinstock (2017: 639) distinguishes principled compromises from both consensual agreements and modus vivendi. When conflicting parties reach a modus vivendi they do so thanks to strictly strategic reasons and through intersubjective tactical dynamics. A modus vivendi, mirroring the stalemate among conflictual forces, is stable until one of the parties gains more power and becomes a more threatening force. In this sense, a modus vivendi agreement can be reached in ways different from a compromise – through acquiescence in a contested practice, for example – since it does not necessarily require mutual concessions. Parties engaged in a modus vivendi are not interested in establishing a successful collective coordination, but rather are motivated by the goal of maximizing as much as possible the satisfaction of their preferences in the face of entrenched conflict. For a realist defense of modus vivendi as a plausible tactic in democratic contexts, see Horton (2010); McCabe (2010) and Rossi (2010). Modus vivendi has been revisited as a useful concept to achieve stability in the face of deep disagreement also from the perspective of Rawlsian-oriented liberal accounts, see Ferrara (2018), Gentile (2018) and Sala (2019). 11

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provide a satisfactory illustration of the practice of compromise if we do not take into account the deliberative dimension of the intersubjective exchanges of reasons and mutual concessions among conflicting parties. Along these lines, Weinstock (2017) observes that theorists have erroneously assumed that the deliberative processes employed for reaching a compromise are the same as those employed to establish a consensual agreement. According to this reading, deliberative procedures remain always the same, but compromise solutions to conflicts become relevant whenever deliberation is unable to establish a consensual agreement. In other words, compromise has been traditionally described as the second-best option that becomes available as a way out of conflict when deliberative procedures are unable to deliver a full-fledged consensual agreement.12 Contesting this illustration of compromise, Weinstock carves out a deliberative model that is specifically imagined for compromise-­based agreements. First of all, in a deliberation that does not primarily aim at consensus, citizens are not compelled to respect a deliberative constrain that limits the kind of reasons (e.g. intelligible or accessible reasons; public and non-­ public reasons; self-interested or others-regarding reasons, etc.) that they can publicly use when confronting others. Since compromise as a political solution to conflicts makes sense if and only if can be actually worked out, it is relevant that citizens can be fully sincere, laying out their requests, preferences and making explicit which solutions to the stalemate are unacceptable for them. It does not make sense for anyone involved in a confrontation aimed at striking a satisfactory compromise to hide her preferences and requests. Second, the reciprocity requirement imposed in deliberative settings aiming at compromise is less demanding than the one envisaged for reaching a stable consensus. The latter requires citizens to address one another with reasons whose content is mutually acceptable, thus giving priority to public reasons and to a not partisan attitude.13 Conversely, the reciprocity requirement involved in compromise-aiming processes is exemplified by a carefulness for others that does not involve a further request of bracketing personal preferences, interests and partisan reasons. Third, deliberative processes aimed at compromise, since they do not have the goal to change agents’ preference in favor of a common ground, allow agents to specify to themselves and to others the concrete requests and preferences that can be derived from their conceptions of the good life and therefore to reason more attentively about their preferences ranking. Since compromises are not dependent on agents’ change in preferences or on them revising their judgments, a deliberative exchange of this sort, according to Weinstock, can be very

 “According to what might be called the ‘no difference’ view, deliberation should aim at consensus, and participants should be sensitive enough to indications that consensus is in a given context simply out of reach, and stop short of consensus at the ‘way station’ that compromise can be taken to represent. Compromise is just a stopping point on the road to consensus, according to the no-­ difference view, and does not require that deliberation be carried out any differently from the way in which it would be engaged in were consensus truly in the offing,” Weinstock (2017: 649). 13  For a traditional outline of the reciprocity requirement as one of the most important normative constraints within a deliberative setting aimed at consensual agreements, see Cohen (1997, 2009); Gutmann and Thompson (1996, 2004) and Habermas (1996). 12

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helpful to agents for realizing which priorities they are not ready to let go and instead on which preferences they can accommodate others’ requests. Since agents are not pressed to translate their beliefs and judgments in public terms – compromise is practically efficacious when agents are honest with one another – then it is possible that the public exchange and confrontation with others can help subjects become more aware of their inner motives. Further, these relaxed forms of deliberation are helpful in clarifying to agents which aspects of their set of ­preferences and ideals they are ready to make public concessions on and which aspects and claims, instead, are for them not negotiable.14 It is worth highlighting that even in deliberative processes primarily aimed at political compromises, some limits should be established regarding the terms of agreement that can be acceptable for citizens. There may be conflicts in which parties are so entrenched in their set of beliefs that they are not ready to make significant concessions to other parties. In these instances, it is hard to imagine parties reaching a stable principled compromise. This can be the case for highly sensitive moral matters where making concessions to others puts in danger the moral and epistemic integrity of agents. However, as we have stressed many times, in democratic heavily conflictual contexts, a majority of citizens should be aware that avoiding indeterminacy and establishing some rules of coordination with others is extremely important for being able to conduct a satisfactory (and secure) life. Thus, even for conflictual matters in which identity-related issues are at stake, it is possible to argue in favor of compromise-based agreement. Furthermore, it is important to highlight that the acceptability of political compromises does not depend solely on the willingness of citizens to accept these agreements (as a purely voluntaristic model would argue), but rather partly depend on the proved consistency of these compromises with the background liberal framework that constitutes the normative grounding of liberal societies.15 This illustration of principled compromises is also helpful in clarifying a further dimension of unreasonableness that makes this social vice detrimental to a functioning democratic society in a hyperpluralistic world. Unreasonable citizens, indeed, showing an epistemic stubbornness and a pervasive unwillingness to accept fair terms of cooperation can be described as the agents that would most likely kill any chance of reaching stable political compromises. We can assume a direct proportionality between citizens showing an unreasonable attitude in many instances of

 “People’s beliefs and convictions are not static, immutable intellectual edifices. Rather, they develop and gain shape and texture as they are put to use in dealing precisely with the kind of challenge that is presented when adherents are put in a context in which they have to respond to a challenge on a matter of policy. […] Deliberation allows them to engage in an exploration of their views, one that allows over time for what is core and what is peripheral in their conceptions to emerge, and to contribute to their interlocutors’ being able to engage in exactly the same process,” Weinstock (2017: 651–652). 15  For an exhaustive outline of the normative criteria that political compromises ought to respect in order for political compromises to be admissible from a moral point of view, thus avoiding the risk of rotten compromises, see Margalit, 2010. 14

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their social life with a likely unwillingness on their part to engage constructively in deliberative processes aimed at principled compromises. In support of the thesis that citizens may be willing to strike compromises for normative considerations and not just for pragmatic reasons, Weinstock introduces four arguments. An argument, the argument from epistemic finitude, introduces epistemic circumstances of the political sphere that are very similar to the analysis I provided in Chap. 3. Given the complexity of evidence, and the finitude of humans’ epistemic capacities, Weinstock argues that agents have good reasons to acknowledge intrinsic value to deliberative processes aiming at compromise, since they allow us to establish an agreement notwithstanding the impossibility of reaching an ultimate agreement over the evidence at stake. Further, given our shared finitude, agents owe one another the recognition of a mutual epistemic standing, hence establishing a second epistemic reason in support of an accommodative attitude toward fellow citizens.16 This conclusion by Weinstock, perfectly consistent with the paradigm that I am defending in this work, is helpful to criticize one of May’s arguments against the possibility of working out principled compromises. May suggests that the procedural requirement of granting each citizen equal opportunities to impact political decisions is exhausted by the commitment that every point of view ought to be fairly represented during the negotiation process. However, the argument from our epistemic finitude, that I developed in the terms of the fallibility clause, can be extended to show that the mutual ascription of an equal standing, in both its moral and epistemic dimension, drives reasonable citizens to an effort to include other parties’ perspectives even in the final compromise-based agreement. With a caveat in mind: given the normative role played by the background liberal framework, there are opinions and preference that cannot be included in the final compromise when these run afoul of the fundamental liberal goals and ideals (e.g. a preference for a hierarchical society in which the principle of political equality does not comprehend every member of the constituency cannot be included among the list of adequate options for a political compromise). A second argument, the argument from political contingency, reasons about how imperfect collective decision-making procedures are. Looking at the nonideal circumstances, it appears that democratic procedures may be perfectly equal and fair in theory, but that the implementation of these practices is very often, if not always, marred by historically established asymmetries of power, unbalanced visibility in the public arena, contingently constructed social standards and expectations (Galeotti, 2017). Specifically, Weinstock refers to the “tyranny of the articulate” (2013: 548) stressing that collective decision-making procedures are biased in favor

 “Part of this claim has to do with the trust and respect that is due to those who we consider to be ‘epistemic peers’, that is, people who are no worse, though also no better, than we are in getting to grips with the issues at stake in a debate. It is important to emphasize that the respect and trust that are at issue here are epistemic in nature rather than ethical. That is, we integrate their point of view into a final compromise not in virtue of their moral status as fellow citizens, as moral agents, as ends in themselves, or whatever, but in virtue of their status as knowers and as moral reasoners,” Weinstock (2013: 547). 16

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of privileged groups that are epistemically advantaged and whose opinions tend to count more than others’s. Assuming that asymmetries of power and epistemic and political privileges are a matter of the real word, it is important to reflect about the possibility that principled compromise practices, when adequately grounded in normative commitments, can in fact have positive effects in fighting and amending these asymmetries. We shall return to this topic in the next and last section of this chapter. For now, let’s focus on Weinstock’s analysis. He claims that principled compromises are probably the best practice in the nonidealized circumstances of politics. But also, he maintains that even in idealized contexts, it is unrealistic to expect democratic decisions to perfectly reflect the opinions and preferences of every citizen. Hence, even when we reason from abstractions, principled compromises are a valuable method for solving conflicts while respecting the parties involved.17 The third argument in support of principled compromises relies on the argument from embeddedness, that is, the assumptions that citizens, living in unjust societies, where agents tend to fight over contested pieces of evidence and where pervasiveness of disagreement is an unremovable fact of social life, would tend to favor a democratic system where not all the power rests in the hands of the members of majoritarian groups. A winner-takes-all-democracy is a model of democratic participation in which individuals who have more political power, influence over the political agenda, more chance to be a member of elite groups, would retain all their bargaining power, without any incentive to find a middle ground with disadvantaged members of the society. According to Weinstock, citizens who refuse this demoralizing model of democratic coexistence in favor of a more balanced and progressive-­ oriented one, would have a supererogatory reason in support of principled compromises, that is, a sound reason for rejecting a dynamic in which each citizen always attempt to maximize her advantage while confronting others. In other words, rebutting a winner-takes-all democracy model may imply that citizens are willing to abide by fair terms of cooperation while attempting to strike compromises for normative and not simply pragmatic reasons. Agents may be motivated by these supererogatory reasons to accept political compromises even while retaining first-order reasons in favor of their first-ranked preference as the optimal solution to the collective stalemates. In this sense, citizens do not risk their moral and epistemic integrity even when they willingly enter into negotiation processes and abandon the hope that their first-ranked preference will be selected as the democratic choice for the matter at stake. Principled compromises have a normative value in themselves, as they can be described as decision-making procedures that attest to a democratic model in which winners do not retain too much power, therefore exemplifying in real life the ideal of co-authorship that I defend.

 “It just always is the case that our democratic systems are imperfect instantiations of the principles of democratic representation and inclusion. Thus, the need to realize the principle through remedial, substantive contexts, rather than simply relying on procedural means, survives into the realm of ideal theory,” Weinstock (2013: 550–551). 17

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Finally, Weinstock introduces a fourth argument in support of principled compromise, the argument from principled consequentialism. Apart from principled reasons in support of compromise as an adequate model for democratic decisions, Weinstock maintains that there are consequentialist incentives as well for entering with a positive attitude into deliberative processes aimed at compromises. Once the majority of citizens realize that their optimal option would hardly be selected as the final political decision (e.g. an agent might support universal health coverage as the best way to assure fair access to healthcare) given the highly conflictual political environment, they may resort to a compromise decision as the best approximation to their ideal preference for the time being (e.g. healthcare public coverage for the elderly and less wealthy members of the society). This attitude, sustained by consequentialist intuitions, is criticized from the perspective of the ‘purists’, that is, agents who dismiss any compromise solution as a vilification of their optimal preferences. The purists assume that politics is an all or nothing practice, in which the only way to remain loyal to one’s preferences and beliefs is to fight for the full prize, letting go of any negotiating incentives. The purist attitude can be criticized with at least two arguments: (i) arguing against any form of compromise in politics is inconsistent with the day-to-day democratic practice in which citizens, politicians, union representatives, etc. constantly strike compromises, in order to avoid unresolvable stalemates and a lack of coordination that would have deep negative effects on citizens’ lives; (ii) this attitude in a sense exemplifies a dislike for the democratic ideal and for the consequent requirement of sharing co-authorship with fellow citizens.18 We can then conclude that a satisfactory account of principled compromise assumes that being willing to engage in these negotiation practices is part of a democratic ethos and of a more general rebuttal of a winner-takes-all model of democracy.

6.2.3 The Normative Assumptions of Compromise In the previous section, outlining Weinstock’s theses, I tried to defend the theoretical (and practical) plausibility of principled compromises. Now we shall extend our analysis illustrating what normative principles can indeed be included and respected in compromise processes. At first sight, the ideal of equal respect appears to be the most relevant normative requirement that principled compromise should mirror. As

 Philippe Van Parijs correctly argues against this purist attitude. Assuming an ‘all things considered’ approach, he highlights that striking a compromise does not necessarily mean betraying important goals and ideals, as long as the compromise grants what is currently the best outcome all things considered. “The hypothesis therefore becomes that a compromise is good to the extent that it allows justice to be promoted as far as possible, all things considered. In response to those who would protest against giving in to the unacceptable, it may suffice to appeal to Max Weber’s classic distinction between the ethic of responsibility and the ethic of conviction or, less pompously, to the old saying: ‘the best is the enemy of the good’,” (2012: 473). 18

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we previously discussed, according to May the ideal of equal respect imposes on compromise procedures a constraint of equal inclusion in the decision-making process but does not have a say on which compromise-based outcomes can be regarded as acceptable, since the incentives to accept a compromise are always pragmatic and not principled. As it should be clear by now, the ideal of co-authorship, that I describe as an essential feature of an adequate model of liberal legitimacy defined in the terms of relational justice, requires something more than a formal inclusion of different points of view in the deliberative processes. Since agents do not have the same visibility in the public arena, positional powers being distributed unequally, then the ideal of co-authorship requires a substantive responsiveness of political decisions (and political representatives) to every member of the society, regardless of their social positioning, and their moral and intellectual characteristics. This implies that in evaluating the legitimacy of democratic decisions we should assess whether institutions have been able to address the demands of the participants involved in the decision making either by meeting their valid claims, or by offering a justification for rejecting their claims that is acceptable to them. Citizens should not simply be respected and equally considered as subjects with claims and preferences, they should be treated as capable deciders − both in their agential capacities and in not being victims of structural inequalities that endanger their abilities to equally take part in decision-making processes.19 I concluded the previous section claiming that citizens who engage in principled forms of compromise tend to ascribe an intrinsic value to deliberative practices in which parties are willing to grant concessions to others independently of an assessment of how much personal advantage they would gain from the compromise-based solution. It seems to me that this accommodating attitude is indeed a fundamental feature of a democratic ethos in which citizens do see one another as co-authors of political decisions. If I share co-authorship rights with others, I should be willing to listen and accommodate the preferences and ideas of others. Indeed, I cannot assume that my preference is ultimately the only viable option as a democratic decision. Moreover, the democratic ethos imposes on members of advantaged groups restraint in taking advantage of their positional powers and instead accept fairer compromises. Pace May, this paradigm of principled compromise assumes that even privileged members of society may be willing to engage in negotiation processes in which they may end up getting less than what they would have gotten if they were to unrelentingly employ their social power and obtain advantages from their major social visibility. Is this narration completely unrealistic? As Weinstock admits, the kind of reasons that can motivate members of a powerful group to engage in principled compromises are often supererogatory and detached from a strictly incentive-­ based strategic form of reasoning (tellingly, Van Parijs refers to this kind of  On this matter, it is worth recalling Jeremy Waldron’s (1999) comments about the fact that from a neutrality perspective, majority-rule and tossing a coin are both procedurally valid procedures to select a collective decision. Indeed, formal neutrality does not grant substantive fairness. The democratic commitment of giving equal weight to each person’s opinion requires the recognition of the equal standing of citizens as deciders that random selection can never grant. 19

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compromise as honourable compromise, see 2012). Can we then be satisfied with this conclusion? I shall investigate whether we can provide a stronger normative argument in favor of a political requirement to make concessions to others while engaged in public confrontations. Christian Rostbøll (2017), for example, suggests that we can defend a legitimate democratic obligation to make concessions to political opponents while engaged in compromise-oriented deliberative processes. According to his view, there are reasons inherent in the democratic ideal that requires citizens to regard compromise solutions as valid and good in themselves, regardless of instrumental evaluations. Rostbøll defends a conception “of respect for fellow citizens as co-rulers” (2017: 620) that I assume to be similar to the notion of respect that I support in this work. He claims that compromise solutions to political conflicts are intrinsically democratic (assuming the normative-procedural reading of democratic grounded in the notion of equal respect), since they are produced by procedures that acknowledge opposing parties as join participants in collective self-legislation. Along these lines, it can be observed that my illustration of the epistemic dimension of reasonableness as a civic virtue provides us with further reasons in support of compromise solutions as built-in in the democratic ideal of co-authorship. First, I have been arguing that intellectually modest citizens are those that recognize that they do not have epistemic authority to impose their preferences and values on others. This characterization of reasonable citizens appears to be in support of a general compromise-oriented attitude, since compromise practices do in fact prove respectful of other parties’ opinions assuring that all points of view have a direct impact on the final decision. According to this interpretation, compromise solutions are actually more responsive to conflicting citizens than majority rule, therefore better approaching the ideal of co-authorship. Second, it is consistent with the nonidealized circumstances of politics to prefer a model of conflict management that does assume that the general will can be worked out without the need of eradicating disagreements in favor of a homogeneous account of ‘the will of people’.20 As the last point of analysis in this section, I want to investigate a little further the width of the scope of action of compromise as an adequate political solution to conflicts. Since disagreement is a pervasive aspect at every level of our social lives, can compromise be helpful in striking agreements in the face of conflicts at different levels? Think for example of Gaus’s thesis that inconclusive justifications are the most common outcome of collective justificatory processes. Can we successfully employ compromise-oriented processes to manage conflicts over different interpretations of the grounding tenets and ideals of a liberal conception of justice? Can we collectively compromise over a conception of justice that derives from a concept of justice over which the disagreement is less entrenched? In a sense, even the justification of compromise as an adequate and legitimate solution for political conflicts can be reached through a compromise among agents, assuming that some would

 “There is an acceptance that all are entitled to disagree and that we must reach collective agreements in ways that respect our disagreements,” Bellamy (2012: 457). 20

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rather rely on consensual decisions and some others may value a modus vivendi solution to conflict as their favorite, given the circumstantial power dynamics. I agree with Rostbøll and Weinstock that we have the theoretical resources to argue in favor of principled compromise as a conflict management solution that is inherently democratic, since it relies on the normative ideal of co-authorship. Once we establish that democratic practices ought to respect the reflexive agency of all involved citizens, ascribing to them the putative status of practical and epistemic authorities, it makes sense to attribute value to a process in which the agents’ different judgments can all be partly represented in the final decision. This outcome is indeed granted by principled compromise, whereas more traditional consensus-­ based approaches mostly focus on the requirement that members’ preferences and judgments ought to be procedurally represented in deliberation and voting, but not necessarily have direct impact on the outcome.21 Against this backdrop, I maintain that reasonable citizens would have both normative and epistemic reasons to support principled compromise as the most adequate procedure for conflict management in contexts of deep disagreement. Similarly, Rostbøll claims (2017: 632) that “citizens have a pro tanto obligation to seek compromises with each other when they cannot agree.” Naturally unreasonable and/or illiberal citizens would not feel committed to this pro tanto obligation, and this is consistent with observations of multiple trade-offs and bargaining that characterize real-world politics. However, this conclusion does not imply that we cannot carve out a normative argument in favor of compromise, showing that reasonable citizens would be motivated to concede a bit to opponents not only in the light of pragmatic gains, but primarily for principled reasons. Indeed, it is possible to conclude that in the case where both a compromise process and a voting practice would support the same political decision Ʊ, we have solid arguments to argue that the path to Ʊ through compromise is preferable than voting. In fact, we can assume that a compromise that ends up supporting Ʊ, if the asymmetries of power at play are not so extreme and structurally entrenched as to damage the overall process of confrontation and mutual concessions, it must feel more satisfactory to citizens, since their personal judgments are at least minimally represented in the final compromise. No agent is going to be

 It is important to specify that this obligation of entering political compromises with an accommodating attitude and ready to make concessions to meet the others at the middle ground is a conditional obligation, not an unconditional one as, for example, the obligation to grant the right to vote to every subject that has a right to be included within the constituency. Rostbøll highlights that we do not have an obligation of assuming an accommodating posture with members of the society that support racist views, but quite the opposite. A racist member of the polity has a right to cast her vote and cannot be stripped of her political rights. However, no one has a duty to make concessions to racist members of the polity while deliberating over political decisions. “If not all compromises are valuable, and we should compromise only with person’s whose opinions fall within a certain range of reasonableness, then the imperative to compromise cannot be unconditional but must entail an appraisal of the opponent’s political views,” Rostbøll (2017: 631–632). For an exhaustive analysis of the normative criteria through which we can establish which political proposals and ideas cannot be accepted as valid options among those democratically selectable, while still be formally included in procedural processes of conflicts management, see Ceva (2016). 21

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perfectly satisfied with the compromise solution. Nevertheless, every citizen, if the compromise is responsive to her judgments in some way, can properly assume the responsibility of being a co-author of the decision, since everyone was engaged in the compromise process and mutual concessions allowed for the final decision to mirror all different perspectives at least minimally.

6.3 Compromise in Nonideal Circumstances In the previous sections of this chapter, I have defended principled compromise as a feasible, normatively characterized, solution to political conflicts in democratic settings. In this last section my goal is to introduce some cautionary remarks on the possibility that principled compromises can warrant an adequate response to structurally entrenched asymmetries of power and to stark differences in public visibility for members of different social groups. Even though I argued, contra May, that reasonable citizens can indeed be motivated in accepting compromises for normative reasons and not just for pragmatic ones, still it holds true, as observed by May, that members of powerful groups are hardly incentivized to meet halfway members of less powerful groups, especially when their reticence is unlikely to produce negative effects for them. Looking at nonideal circumstances, we can observe that actual democratic processes tend to be biased in favor of privileged groups and elites, therefore putting pressure on the possibility of properly realizing principled forms of compromise. My goal in this section is diagnostic: while defending principled compromise, I want to shed some light on the predictable unfair effects that political compromises can have on members of disadvantaged and/or marginalized groups.

6.3.1 The Role of Power and Structural Forms of Injustice In looking for a paradigm of liberal legitimacy compatible with the nonidealized circumstances of democratic politics, it is fundamental to understand that structurally unjust social contexts provoke disempowerment of members of unprivileged groups, effectively reducing the chances of implementing the ideal of political equality under actual circumstances. When not adequately addressed, these structural injustices cause a secondary, institutional harm, namely, they put the legitimacy of the overall democratic system under pressure. Put simply, whenever in democratic settings the most vulnerable members of the constituency are less heard or have fewer opportunities to impact final decisions – often if not always reached through political compromises – then we can argue that the ideal of co-authorship has failed under nonideal circumstances, threatening the overall legitimacy of the political system. Coherently with the general paradigm that I defend in this work, I maintain that to evaluate the actual chance for the ideal of co-authorship to be implemented when dealing with the real circumstances of politics, we need to

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highlight the asymmetrical relations of power that characterize political constituencies (Connolly, 2002). My approach, in illustrating the systemic damages caused by asymmetrical relations of power within democratic settings, provides explanations that refer to structuring causes. Structural explanations can be distinguished from aggregative explanations. Structural explanations describe a phenomenon as part of a larger phenomenon that sets constraints on the behavior of agents, thus providing an account of structuring causes that are not coincident with incidental-triggering causes. Structural causes help explain patterns and show how structures can impact agents’ identity formation and deliberative processes. Since social structures are often hidden, a critique of social structures and the impact they have on agents requires normative analysis (Cudd, 2006; Haslanger, 2012, 2016; Young, 1990, 2011). Since social structures are causally efficacious and can constitute a significant source of injustice in the everyday life of real-world democracies, it follows that we cannot do without this structural approach if we want to evaluate the actual legitimacy of democratic contexts. Once asymmetrical power relations are laid out, it is possible to draw some problematic conclusions regarding the possibility for compromise strategies to accommodate disagreement, while respecting the preferences and opinions of all the members of the demos. Indeed, a general structural outlook on issues of social injustice suggests that some disadvantaged members of the polity may lack the political resources and social visibility to fight against unfair compromises, given the unbalanced negotiation power that characterizes individuals within the nonideal circumstances of politics. First, members of stable minorities might lack the political recognition that assure actors to be fully heard by the public and, consequently, their opportunity to influence the negotiation process might be endangered (Dotson, 2012, 2014; McConkey, 2004). Second, disadvantaged citizens might end up accepting unfair compromise because they fail to realize that what is usually considered in their best interest is actually grounded in partial values that disadvantage them (Medina, 2012, 2013). Third, members of the polity who have been suffering forms of epistemic injustices (Fricker, 2007) are jeopardized in their ability to develop part of their personal identity, at least because they are constantly subjected to political disrespect, as they are not perceived as epistemically trustworthy members of the community.22 To conclude, structural (unequal) circumstances very often provoke a disempowerment of members of already disadvantaged groups and cause public questioning regarding their ability to meet the (moral and epistemic) standards necessary to be ascribed the status of fully autonomous agents. Therefore, it is important to show that the asymmetrical relations of power affect not just the actual legitimacy of democratic decisions and institutions, even more profoundly  Miranda Fricker, in her Epistemic Injustice: Power and the Ethics of Knowing (2007), analyzes epistemic forms of injustice endured by subjects specifically in their capacity as knowers. Fricker (2007: 1) introduces two distinctively epistemic forms of injustice: i. testimonial injustice, that “occurs when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word” and ii. hermeneutical injustice that “occurs when a gap in collective interpretive resources puts someone at an unfair disadvantage when it comes to making sense of their social experiences.” 22

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shape how members of disadvantaged groups understand themselves as political actors, therefore endangering the adequate development of their practical and epistemic capacities. In order to better illustrate these concerning conclusions, I shall look at two circumstances of real-world democracies, one structural, the other agent-relative, that characterize our lives as socially situated agents: power and relational vulnerability. Power is a socially situated capacity to control  – directly or indirectly  – others’ actions. In nonideal political contexts, access to political resources is distributed unequally among political actors. This means that some members of the polity have a wider influence on political processes, endangering the ideal of political equality that is one of the tenets of democratic systems. The notion of powerlessness as introduced by Iris Marion Young (1990: 56–58) as one of the facets of oppression perfectly captures the kind of political injustice I am illustrating in this section. Young investigates five forms of oppression that “some people suffer not because a tyrannical power coerces them, but because of the everyday practices of a well-­ intentioned liberal society” (p. 41). Oppression in the political domain means that some subjects of public laws are not treated as full members of the constituency that takes decisions and elects representatives (and in some political contexts takes part in the judicial system as well). In other words, we can draw the conclusion that political oppression means that some citizens are powerless, either practically or epistemically, or both.23 At the level of practical authority, they lack the positional power and the visibility to confront and challenge historically established standards and social norms that disadvantage them. Further, they find themselves confined to the less powerful side while engaged in political fights. As for epistemic authority, some citizens, given some aspects of their identity or membership in a specific social group, are socially associated with attributes that tend to put in question either their epistemic competence or their sincerity – or both. The outcome is that the community of epistemic trust, that ideally in democratic settings ought to be a community as ecumenical as possible, is instead reduced to a membership club to which some citizens have access by birth right, whereas others have their membership constantly questioned and investigated. This outcome runs afoul of the normative requirement of treating citizens as equal and opaque, ascribing them the status of putative practical and epistemic authorities. As for the second circumstance I want to focus on, a structural outlook of political and social injustices helps us in understanding that agents are relationally vulnerable. This means that the development of our agential capacities and identity, as well as the social roots of self-respect,24 are shaped and affected by the social  “The powerless are those who lack authority or power even in this mediated sense, those over whom power is exercised without their exercising it; the powerless are situated so that they must take orders and rarely have the right to give them,” Young (1990: 56). 24  It is worth recalling John Rawls’s (1971) well-known thesis that the social bases of self-respect is one of the primary social goods that ought to be fairly distributed in a just society. According to Rawls, self-respect is one of the necessary preconditions of a citizen’s sense that her plan of life is worth carrying out. Rawls is clear in stating that the sense of one’s worth is dependent upon the 23

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r­ elationships of which we are part. In social contexts, each and all of us are vulnerable to others. As Donna Haraway (1988) famously claimed, we, as agents, are socially situated. From this, it follows that historically powerless or disadvantaged groups and minorities, which often suffer from a lack of recognition as capable reflexive political agents, tend to internalize the power asymmetries as constitutive of their identities (Alcoff, 2010; Code, 1991; McNay, 2014). Because of this, in order to cast light on the political dimension of such injustices, it is important to include agents’ constitutive vulnerability to others as a specific feature of practical agency in nonideal circumstances. Since our vulnerability to others is a normal aspect of our collective life, we have to account for it when discussing democratic legitimacy. The analysis of the relational vulnerability we share as socially situated agents in structurally unjust political environments is relevant – and troubling – for my general account, as I assume that being publicly perceived as a legitimate member of the polity is an essential characteristic of individuals’ identity and agency. Indeed, we can draw concerning conclusions about the risk for powerless citizens to be jeopardized in their ability to develop part of their personal identity, at least because they are constantly subjected to political disrespect, as they are not perceived as putative practical and epistemic authorities. They constantly need to fight for obtaining a fair hearing, and their claims, preferences and requests have a less than equal opportunity to impact political decisions. Furthermore, lacking a proper sense of self-worth – at least with regard to their political positioning – implies that often members of powerless groups have a hard time challenging the very same social structures that have allowed the power asymmetries in the first place. Against this backdrop, it becomes clear that casting doubt on the chances of compromise practices to grant equal treatment to every member of the constituency is a legitimate concern.

6.3.2 How to Fight the Tyranny of the Articulate When Weinstock refers to the tyranny of the articulate he captures something essential of the power-dynamics that characterize structurally unjust political settings. Relatedly, this concern puts pressure on my illustration of the civic virtue of reasonableness as demanding an ascription of the status of putative practical and epistemic

social environment in which one happens to live, therefore the mutual relationships among citizens (and among citizens and political institutions) are fundamental for granting the social bases of self-­ respect to each citizen. The social bases of self-respect depends upon both the attitude of others toward me, and the social environment in which my identity is shaped. First and foremost, a social condition of self-respect stems from relationships of equal respect that should be established in a fair intersubjective context. Second, in order to pursue my conception of the good life in a meaningful way, it is probably necessary that in the society in which I live my identity and my preferences and opinions are not stigmatized or wrongfully misrecognized.

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authority to fellow citizens. Indeed, when dealing with highly imperfect collective decision-making procedures that tend to be biased in favor of privileged groups, it is important to assess whether we can counter the epistemic advantages that these procedures assure to privileged members of society.25 Again, we need to reflect about the possibility that principled compromise practices, when adequately grounded in a normative analysis of structural causes of injustice, can in fact have positive effects in fighting and amending these asymmetries, rather than reinforcing them. On similar lines, Amandine Catala (2015) has developed an interesting argument about a form of epistemic domination that characterizes real-world democracies that are hostage of a deliberative impasse, caused by the unwarranted epistemic power that the members of powerful groups hold in shaping collective understandings and social standards. Drawing upon the republican notion of non-domination (Pettit, 1997) and extending this analysis to the epistemic realm, Catala argues against the arbitrary power that privileged members of political societies possess to unilaterally impose collective understandings and social standards, leading to a form of hermeneutical monopoly where public discourses, and consequently decision-­making processes, are mainly, if not entirely, shaped by the preferences of powerful members of the polity. From a strategic perspective, we have seen, members of the majority have self-regarding reasons to maintain the circle of public trust as a selective membership club of which they decide all the admission rules.26 Further, a speaker has no direct way to force an audience to hear her. The deliberative reciprocity constraints, in nonideal contexts, cannot be taken for granted. Moreover, even when social processes provide the speaker the space to talk and be heard, still powerful members of the polity may prove unwilling or unable to reach the appropriate uptake of the publicly provided testimony (Dotson, 2011; Langton, 1993). Not to mention those instances in which the privileged actively dismiss the epistemic efforts of the marginalized, fueling active ignorance and reinforcing the cycle of epistemic exploitation of the underprivileged (Berenstain, 2016; Medina, 2013).

 Interestingly, there has been a lot of debate regarding attempts to reverse these dynamics in which public discourse is mainly, if not entirely, shaped by powerful members of the polity. Taking insights from standpoint theorists (Haraway, 1988; Harding, 1993; Jaggar, 2007; Wylie, 2003), some authors (Catala, 2015; Polletta & Lee, 2006; Smith, 1998) have insisted that members of a minority should be recognized as epistemically privileged authorities, given their specific experiences of unjust social power relations. This proposal looks for not just a revision of the public processes for the ascription of epistemic trust toward equality; it actually requires that to members of disadvantaged groups is granted an epistemic privilege on matters of social justice and political inequality  – about which they are deemed to be especially competent. Thanks to a contextual analysis, the argument goes, we can establish whether and to whom this special epistemic privilege can be granted. Even though I find this proposal compelling, I argued elsewhere (2020), that I envision two problems with this proposal − one morally grounded and one pragmatically oriented − that are partly related to the account of democratic legitimacy I defend in this book. 26  Michael Fuerstein (2013), for example, develops an interesting argument about the game-­ theoretical character of epistemic trust relations in social settings. 25

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Granted all these gloomy aspects of compromise practices in nonidealized circumstances, can we still be optimistic about the possibility of establishing principled forms of compromise in democratic settings? We should focus on which factors may motivate powerful members of democratic societies to be sensitive to reasons of justice while involved in compromise practices. Weinstock’s argument against a winner-takes-all model of democracy is a first step in the right direction. On my part, I intend to briefly outline some proposals in favor of systemic reforms to tackle structural forms of injustice. Lately, authors have been concentrating on virtue-based remedies against structural forms of injustice (Frost-Arnold, 2014; Roberts & Wood, 2007; Zagzebski, 2012), stressing the importance of interpersonal sensibility in reaching critical awareness about how deeply social positioning and group marking affect the perceived status of agents in collective decision-making processes. Fricker (2007) develops a version of virtue epistemology that is agent-centered, articulating the epistemic responsibilities we share when we are engaged in testimonial exchanges. The virtue of testimonial justice requires agents to work on their reflexive critical social awareness, in order to establish testimonial relationships that are not prejudicially impacted by identity power relations. Similarly, Daukas (2006, 2011) outlines an explicitly social form of virtue epistemology that is grounded in the concept of epistemic trustworthiness. Agents are epistemically trustworthy when they: (i) meet the criteria to be considered credible testifiers; (ii) are reliable judges of the credibility of others. For both Fricker and Daukas, epistemically virtuous agents should develop a critical perspective, in order to recognize and resist forms of cultural oppression and epistemic marginalization. I agree that this focus on individuals’ responsibilities for establishing virtuous testimonial exchanges is important, because it is hard to conceive a way to fight social oppression if agents do not develop critical sensibility toward these issues. Along these lines, and in perfect coherence with the general outlook I defend in this work, I assume that the notion of reasonableness, as a practical virtue of citizenship, can be extended in order to include a further feature, that is, critical sensibility toward epistemic misrecognition. This means that an agent cannot be properly defined as politically reasonable if she proves to be unmindful of instances of epistemic oppression. As much as we expect reasonable citizens to fight against social processes that endanger moral and political equality, the same request applies to unwarranted instances of epistemic misrecognition. The legitimacy of a democratic system partly derives from the establishment of a just and well-­ functioning practice of epistemic trust among citizens, therefore reasonable agents have normative reasons to resist systemic processes that prejudicially put in question the credibility and epistemic reliability of some members of the constituency or, even worse, attempt to reduce some citizens to a powerless status. Once it is specified how features of virtue epistemology can be included within a normative account of the practical virtue of reasonableness, it is important to evaluate which institutional remedies can be proposed in order to address systemic forms of injustice that endanger the overall legitimacy of democratic systems. Preliminary, it is necessary to support wide institutional reforms for addressing

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structural forms of injustice that prevent many citizens from being treated (and recognize themselves) as first-class citizens and as warranted members of the political community of epistemic trust. For contestations of systemic wrongs to be effective, though, I maintain that we have to be aware of both the deliberative impasse highlighted by Catala and of the lack of motivation on the part of powerful groups to mitigate social injustices that tend to favor them. In the nonideal contexts of real-­ world democracies, we cannot expect powerful groups to be ready to let go of their positional power and of their unwarranted political advantages. Therefore, working on institutional reforms proves to be even more pressing in nonideal circumstances. Political institutions, along with the judicial system, have resources for pressing powerful groups to abide by fairness constraints and to re-shape the public space in order for it to really become a neutral space where each identity is treated with respect. In order to push for this structural reform, it is fundamental to enrich public debates with an adequate analysis of the epistemic dimension of political agency as well as raise awareness about how power asymmetries cause political and epistemic discriminations. In this regard, I take my attempt to shed lights over the epistemic dimension of the liberal notion of political agency as one of the most important contributions of this book to the contemporary literature on liberal legitimacy. Relatedly, in the attempt to lay out concrete proposals for institutional reform, I claim that it is essential, first and foremost, to outline a refined account of the normative ideal of citizenship, stressing that citizens, in democratic settings, should recognize one another as agents who share both practical and epistemic authority with regard to legitimate collective decisions. From this more nuanced description of the notion of political agency in democratic settings it follows that the system of checks and balances, as well constitutional courts, have even less excuse to allow forms of political disenfranchisement impacting disadvantaged groups. Second, it is central to look at ways of granting equality in educational resources, providing marginalized groups with more epistemic capital to acquire the markers of credibility, therefore favoring the ascription of the status of epistemic authority to all subjects involved in political decisions (Anderson, 2012). Better educational systems can also provide the right environment for members of powerful groups to develop a critical sensitivity to reasons of justice, promoting the diffusion of the civic virtue of reasonableness. Third, in reasoning about the possibility of establishing principled practices of compromise, it is important to highlight that developing deliberative processes at the local level can be helpful for enriching intergroup exchanges and for increasing shared inquiries among citizens that belong to different social contexts. These deliberative processes aiming at compromise, if rightly laid out, can increase familiarity among members of different social groups and reduce intergroup bias and consequently enhance epistemic trust. This suggestion comes with a caveat: in order to build up deliberative processes that do not reinforce power asymmetries mirroring the ones already in place, it is necessary to loosen the standards of what kind of reasons and communicative attitudes are adequate in deliberative contexts (Dieleman, 2015; Sanders, 1997). This suggestion is specifically relevant for the model of principled compromises that I defend in this chapter, as I have

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assumed that one of the positive aspects of compromise, vis-à-vis consensus-aiming processes, is exactly the possibility for individuals to be sincere about their preferences, personal motivations and private reasons, without the need to bracket them in favor of public reasons. Fourth, in the attempt to reform institutional settings that keep some citizens in a state of powerlessness, it is essential to increase the ability of citizens to contest public processes. Institutions should provide the right conditions for contestability to take place, namely the possibility for citizens to have the power of freely contesting wrongful treatments of various sorts. Contestation is meaningful if and only if the contester’s words are heard without prejudice or a lack of trust.27 Epistemic justice, therefore, becomes a condition of political freedom (Fricker, 2013). Fifth, I think that political parties, provided that they meet some normative requirements, can play an important mitigating role in preventing risks of disrespectful (or insensitive) public appraisal of the personal experiences of disadvantaged citizens, meanwhile supporting proper confrontational settings where such experiences can be shared in meaningful ways. Parties can deliver organizational empowerment that aggregates the claims of individuals and exercises relevant and enduring influence on the decision-making process. In this sense, partisan fora can play an important role in empowering marginalized individuals and groups by ensuring that, in nonideal contexts, participants in democratic decision making are publicly acknowledged as equals and are granted the conditions to take part in political debates on an equal footing. Furthermore, by insisting with individuals and groups to be concerned with their interests and values, partisan fora can help them to become aware of being subjected to an unjust social and political system and to develop an alternative discourse to the dominant and unfair state of affairs (White & Ypi, 2016). Maybe too idealistically but interestingly, some authors (Bonotti, 2017; Muirhead, 2014) have also concluded that, since parties develop proposals grounded in (partisan) values, they can help in building a confrontational environment in which principled compromises are not out of reach. To conclude, the fast-growing contemporary literature on normative accounts of parties and partisanship is interesting for assessing whether principled forms of compromise can be worked out in nonidealized political contexts and whether, in doing so, parties can be helpful in fighting against structural forms of injustice that leave some citizens in a state of powerlessness. To conclude this chapter, I want to add a brief reflection on the possibility that political empowerment for disadvantaged and marginalised groups can also come through symbolic changes in the informal public sphere. Indeed, social reform, more inclusive laws, the expansion of epistemically just deliberative fora can profoundly help in enhancing familiarization with disadvantaged identities that have  Some authors have focused on the fundamental contribution that the shared experience of oppression suffered by marginalized groups can have for a program of reform in a pluralistic democracy. For Tommie Shelby (2016), for example, the shared experience of oppression inclines victims to morally understand and resist their oppression. From this analysis he then theorizes a pragmatic relation between the shared experience of oppression and the development of a robust standard of political judgment. 27

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been suffering social invisibility, disrespectful public treatment and less-than-equal political standing. Enhancing familiarization with aspects of disadvantaged identities that members of the majority or of powerful groups perceive as ‘different’, distasteful or plainly wrong from a moral perspective, is a relevant dimension of the never-ending fight toward a more equal political environment. Adequate processes of familiarization, in fact, press members of society holding more political power and social visibility to become aware of features of underrepresented identities that were completely invisible to them (for culpable or not culpable ignorance). This means that individuals can have a deep impact through media interactions and the creation of cultural products, such as movies, novels and performing arts, that involve a critical appraisal of social reality and a public showing and a rebuke of processes of cultural domination.28 In the next and last chapter of this book, I shall examine a case-study in which these dynamics of deliberative impasses and cultural domination stably enjoyed by members of the majority come to the forefront. The case-study refers to the long and harsh fight for the extension of marriage rights to same-sex couples and to the forced invisibility in the public sphere that members of the LGBTQIA+ community suffered for a very long time.

References Alcoff, L. M. (2010). Epistemic identities. Episteme, 7, 128–137. Anderson, E. (2012). Epistemic justice as a virtue of social institutions. Social Epistemology, 26(2), 163–173. Basevich, E. (2020). W.E.B Du Bois: The lost and the found. Polity Press. Bellamy, R. (1999). Liberalism and pluralism: Toward a politics of compromise. Routledge. Bellamy, R. (2006). Constitutionalism and democracy. Ashgate. Bellamy, R. (2012). Democracy, compromise and the representation paradox: Coalition government and political integrity. Government and Opposition, 47(3), 441–465. Benjamin, M. (1990). Splitting the difference. Compromise and integrity in ethics and politics. University Press of Kansas. Berenstain, N. (2016). Epistemic exploitation. Ergo, 3(22), 569–590. Biale, E. (2015). Democracy and compromise: Beyond a deliberative approach. In K. Palonen & J. M. Rosales (Eds.), Parlamentarism and democratic theory (pp. 187–205). Barbara Budrich Publishers. Biale, E. (2019). Reasonable partisanship as the cement of a pluralistic democracy. Notizie di Politeia, 136, 219–222. Biale, E., & Liveriero, F. (2017). A multidimensional account of democratic legitimacy: How to make robust decisions in a nonidealized deliberative context. Critical Review of International Social and Political Philosophy, 20(5), 580–600.

 For example, W. E. B. Du Bois favors an associational conception of the shared experience of oppression. On this model, intragroup associations in civil society – and especially cultural associations that cultivate a victim’s self-esteem and intragroup social solidarity – refine victims’ moral understanding in the aftermath of their shared experiences. For an analysis of Du Bois’ reflections, see Basevich (2020). 28

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Chapter 7

A Case Study: Extending Marriage Rights to Same-Sex Couples

Democracy is thus another version of Neurath’s boat, repairing itself at sea. The normative constraints that do apply are freighted with the contingent history of such self-corrections and revisions. While constitutions act as the formal framework for collective agents and the distribution of decision powers, almost all contain provisions for their amendment. James Bohman (2006: 183) The entire purpose of civil rights is that everyone gets them even if the majority does not approve, particularly when they don’t approve. R. Claire Snyder (2006: 69)

Abstract  My goal in this chapter consists in testing the applicability of my general paradigm against a case study: the political and legal conflict over the extension of marriage rights to same-sex couples. This case constitutes a paradigmatic example of a public conflict arising around the attempt to revise the public interpretation of a normative concept, when a stable and shared agreement over such a concept has been historically and contextually established and has been taken for granted for a very long time – at least by members of dominant groups. The battle over marriage equality involves a public debate over the opportunity of proceeding with a re-­ conceptualization of the legal concept of marriage to make this practice more inclusive. There are two normative perspectives that are relevant for dealing with this case study. First, it is important to illustrate the power dynamics at play for determining control of the symbolic characterization of the public space, specifically underscoring that this political struggle for the extension of a particular right implies, more extensively, fighting for full citizenship, to wit, equal visibility and equal membership within the public space. Second, it is fundamental to analyze the literature concerning legal litigation around this case and to investigate the adjudication function that the judicial system can at times successfully play. Finally, I shall illustrate the Italian case concerning the institution of civil unions for same-sex couples. Specifically, I will evaluate whether such a political compromise can be considered an acceptable second-best solution and if so, why. © Springer Nature Switzerland AG 2023 F. Liveriero, Relational Liberalism, Philosophy and Politics - Critical Explorations 24, https://doi.org/10.1007/978-3-031-22743-1_7

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Keywords  Concept negotiation · Positional goods · Symbolic public space · Marriage equality · Judicial review In the previous chapter, I defended principled compromise as a feasible, normatively characterized, solution to political conflicts in democratic settings. However, I concluded the chapter by raising some concerns about the possibility that democratic procedures aiming at principled compromises can indeed reach normatively satisfactory solutions to political conflicts in the face of structurally entrenched asymmetries of power. My goal in this final chapter consists in testing the applicability of my general paradigm against a case study, namely, the political and legal conflict over the extension of marriage rights to same-sex couples. This case constitutes a paradigmatic example of a public conflict arising around the attempt, pressed by a section of a society, to revise the public interpretation of a normative concept, a social standard or a norm, when a stable and shared agreement over such a concept has been historically and contextually established and has been taken for granted for a very long time – at least by members of dominant groups. The battle over the possibility of extending marriage rights to same-sex couples involves a public debate over the acceptability of the re-conceptualization of the legal concept of marriage to make this practice more inclusive. One of the goals of this chapter is to show that, to address the normative relevance of the legal battle in favor of marriage equality, it is important to investigate the symbolic aspects of public space, as this political struggle for the extension of a specific right implies, more extensively, fighting for full citizenship, to wit, equal visibility and equal membership within the public space. Historically, the public space within liberal democracies has been conceptualized as a neutral and impartial space that should not be partisan and hostage to one party or identity. However, as we shall see, the so-called neutrality of the public space is infringed by the fact that historically established majorities and powerful elites retain the positional power to establish collective interpretations of social standards and to define the paradigm of normality that sets the standards for acceptable social options in the public sphere. Even when the distribution of material goods is not at stake, the struggle to determine who has the power to revise the symbolic meaning of political norms and social standards can be extremely destabilizing. Indeed, the political debate over strategies – political, legal and symbolic – to reshape the public space into a more equal and less sectarian locus often requires a re-interpretation of historically established standards that are largely familiar and consistent with the dominant groups’ morality and preferences. It follows that public battles in favor of a more inclusive rearticulation of the public space are often perceived as unjustified by members of groups that historically have enjoyed more visibility and social power. The same-­ sex marriage case is a perfect example of such a dynamic. Until very recently, the notion of same-sex marriage was considered a preposterous idea, totally beyond the limit of what can be considered acceptable. In the last 20 years, however, this battle has reached full visibility in western liberal societies, and many countries have

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legislated on this matter. Netherlands was the first country to grant marriage equality to same-sex couples on April 1, 2001. Even though the extension of the right to marry to same-sex couples is well established today in many western countries, therefore appearing as a less pressing case of political conflict than others, in this chapter I argue that analyzing this case is still theoretically interesting, as it shows that even when there is a stable and shared agreement on a specific human right as with the right to marry (see Article 16 of UDHR),1 many public conflicts (and backlashes) may still arise with regard to the implementation of this right. In order to be resolved, this kind of political conflicts usually requires complex compromise processes that partly depend upon a shift in public opinion regarding the matter at stake. Same-sex couples’ demand in favor of marriage equality challenges the traditional view of family structure and puts pressure on social norms regarding the public perception of love relationships and of parenting duties and rights, therefore running afoul of the morality of the cultural majority. There are two normative perspectives that are relevant for dealing with this case study. First, it is important to illustrate the power dynamics at play for determining control of the symbolic characterization of the public space. I shall argue (Sect. 7.1) that in order to mitigate public conflicts around the same-sex marriage case, it is fundamental to foster a public debate over the need for negotiating a re-­ conceptualization of the notion of marriage, both in its legal and symbolic meaning. Second, it is fundamental to analyze the literature concerning legal litigation around this case. In Sect. 7.2 I shall investigate the adjudication function that the judicial system can, at times, successfully play. I also introduce legal arguments that, following the fundamental right strategy, have been employed for justifying the enforcement of marriage equality. Further, it is important to stress the important strategic role that political institutions and representatives may play in familiarizing civil society with marriage equality, showing the reasons of justice that support this request. Willingness on the part of the political elites is essential to ensure constant pressure in favor of marriage equality, even in the face of the quite predictable backlashes that usually follow demands for revision of the public space toward more inclusive arrangements. This perspective reconfirms some findings of Chap. 6, namely that the political practice of public compromises can guarantee acceptable and normatively legitimate decisions if and only if negotiation processes are coupled with an institutional effort to amend structural asymmetries of power and to fight against a lack of visibility in the political domain for unprivileged social groups. Finally, in Sect. 7.3 I shall analyze the Italian debate concerning the

 The Universal Declaration of Human Rights states at Article 16: “(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” See on the Unites Nation website: https://www.un.org/en/about-us/ universal-declaration-of-human-rights 1

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introduction of the legal arrangement of civil unions that is now available to samesex couples (but not to different-sex couples) in order to grant them some (but not all) the rights granted by marriage. In this final section I shall investigate whether such a political compromise can be considered an acceptable second-best solution and if so, why.

7.1 Political Conflicts Over Symbolic Public Space In the last two decades, the legal attempt to extend marriage rights to same-sex couples has provoked harsh public battles and legal debates. I take this case as emblematic for showing that when institutions attempt to extend a right to previously misrecognized minorities, they must engage in complex compromise processes with members of dominant groups that maintain the positional power for discriminating between acceptable and intolerable proposals for revisions of the public space. Furthermore, this case allows me to cast a light on different, but connected, aspects of the public practice of political deliberation and compromise processes in real-world democracies. First, this case study needs to be investigated both from the political and the legal perspective, as an exhaustive analysis of the dynamics at play involves both dimensions. Second, dealing with a concrete case is helpful to understanding that even when people widely agree on the value of a specific right − in this instance, on the fundamentality of the right to marry − they often still disagree on the correct interpretation of the concept they agree on (i.e. providing a unique and ultimate definition of ‘marriage’); on the most correct procedure for granting the enjoyment of this right; and about who are the legitimate rights-­ holders.2 Third, it is relevant to highlight that even when there are valid normative reasons for supporting a revision of the actual practice toward a more inclusive one, political circumstances and lack of motivation on the part of the most powerful members of the polity can still frustrate, slow or even stop institutional and legal reforms.

 I think that is useful to assume, as proposed by Roberto Casati (2011), that the first role of philosophy, as a social and intellectual practice, is to provide successful conceptual negotiations. “My position with regard to the general role of philosophy is that philosophy, as a theory, does not look for the truth of the world directly; rather it explores various alternatives that allow us to reframe the world in ways that are fruitful for our general negotiation-oriented goals,” Casati (2011: 158; translation from Italian by the author). This general account of philosophy is very well suited for my paradigm of liberal legitimacy, according to which a loose background framework, constituted by liberal organizing ideas, ideals and evaluative standards, undergoes constant public negotiation processes over adequate interpretations of this framework in relation to different contexts and historical moments. 2

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7.1.1 Marriage Equality and the Public Sphere A normative analysis of the public debate over marriage equality cannot be exhausted without engaging in an investigation of the role played by the symbolic aspects of public space in making this conflict so complex. As I briefly illustrated in the conclusion of the previous chapter, the conflictual dynamics involving power asymmetries within liberal societies should be analyzed with a structural approach. In fact, these fights more often than not involve a struggle for recognition. Since our subjective identities are inescapably related to the perception of our identity in the social world (Alcoff, 2010; Butler, 1990; Connolly, 2002; Haslanger, 2012; Okin et al., 1999), it appears that instances of identity disempowerment and cultural domination can have a devastating effect on agents’ ability in developing a secure conviction of one’s own worth (Cudd, 2006; Pateman & Mills, 2007; Young, 2000). Looking at real-world democracies, it is evident that many citizens are not treated as first-class citizens de jure, as the principle of equal respect would require. Rather, some aspects of their identities are mistreated, or they have to endure unfair burdens in order to accommodate their identities to a historically and contextually shaped public space. Consequently, issues concerning public space cannot be reduced to distributive conflicts, since very often these conflicts are ancillary to much deeper conflicts concerning the struggle for equal political recognition.3 As I have already noted in the introduction of this chapter, marriage has a social meaning, and an important aspect of the social conflict over the demand to extend marriage rights to same-sex couples stems from the fact that this demand troubles majority members precisely for its symbolic relevance. According to this framework, engaging in a strictly legal analysis of the plausibility of this demand is not sufficient to fully grasp the normative scope of it. When an unprivileged (often a minority) group raises a demand to amend unfair aspects of the status quo, the battle is often, if not always, both legal and symbolic. In general, members of dominant groups tend to interpret this political pressure for a political and legal revision of a concept, a norm, or a social standard as an unjustified aggression against the public space itself, without noticing (or perhaps refusing to notice) that the status quo is already culturally mediated by stereotypes and strongly impacted by asymmetries of power. Hence, a fundamental aspect for solving these conflicts depends upon the

 Political attempts to redescribe political conflicts over equal recognition simply in terms of distributive clashes imply a diminishment of the normative urgencies of these demands. For this reason, these attempts should be contrasted and the surreptitious aim, that is, to find a strategy to misguide the equal recognition demand, ought to be publicly exposed. A concrete example of this strategy can be found in the debate that took place in Italy prior to the vote in the Senate about the bill proposal by Sen. Cirinnà on establishing the legal institution of civil unions. Some opponents of this bill argued that equating same-sex civil unions with marriage would have had an excessive economic impact given the extension of the right to pension survivorship to same-sex couples. This argument shifts the focus from a normative, very urgent, demand for equality before the law for same-sex couples to a less clear-cut issue of a conflict over public resources and how to distribute them. But as we have seen, recognition demands cannot be reduced to distributive matters. 3

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possibility of showing to members of the majoritarian and/or dominant groups that there are normative reasons in favor of reframing the public space in a way that offsets the disadvantages historically suffered by unprivileged groups. In order to re-shape the symbolic political arena into a more inclusive and fairer public space, it is necessary to establish a proper dialogic procedure among citizens, both members of the cultural majority and of the minorities, and political and legal institutions. This dialogic procedure should engage every citizen, respecting their intrinsic differences, but treating everybody as first-class citizens. The political confrontation over marriage equality, for example, should be structured to bring out the intrinsic normative reasons that support the legal and political attempts to establish corrective procedures for mitigating control of the public space by a sectarian group within a society.4 Analyzing the role played by the symbolic aspects in the fight over the extension of marriage rights to same-sex couples is fundamental for understanding that the legal battle in favor of marriage equality is part of a more general fight to concretely satisfy the ideal of equal citizenship in a liberal society. As we shall see, public arguments raised against the extension of the right to marry to same-sex couples tend to stress the fact that in contemporary democracies same-sex couples are free to practice their favorite form of intimacy and that therefore they are not subject to discrimination. These arguments describe the demand to extend marriage rights as unwarranted one, as this request presses for a radical reconceptualization of one of the historically established dogmas of traditional morality − that is, the definition of marriage as a moral and legal bound between a man and a woman in order to constitute a family and, more often than not, to procreate. Some citizens who belong to the dominant group – in the case at stake, heterosexual members of the polity – perceive this demand to modify the traditionally established notion of marriage as illegitimate, since same-sex couples can be together without being subject to discrimination (at least in theory), whereas revising the legal practice of marriage, the argument goes, would involve granting an unfair privilege to these couples. As it should be clear by now, there are many relevant arguments that we can use to show the double standards invalidating this line of argument. Galeotti (2008), for example, has stressed that full membership does not simply require that one is tolerated within the public space. Rather, the normative ideal of full membership calls for a full enjoyment of civil rights along with a public revision of the public sphere in order to erase structural and symbolic instances of misrecognition of disadvantaged groups and identities. The misrecognition of same-sex couples as legitimate members of the public space is the outcome of the long history of public invisibility that the LGBTQIA+ community has suffered and of the attempt, by dominant groups, to maintain control over the positional power for determining the public standards of normality that articulate the public arena. It follows, then, that the

 “The dialogue is justly structured and conducted only when all the relevant points of view are valued and heard and allowed to speak in their distinct voice. If it were to require all participants to speak in a single language, it would not only fail to render other languages their due but also enshrine the domination of the group or culture it represents,” Parekh (2004: 207). 4

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extension of marriage rights to same-sex couples would not constitute an unnecessary modification of an established practice in order to favor a minority that is already tolerated and whose equal dignity is recognized in the public space. Rather, extending the right to marriage to same-sex couples is the only correct way for granting them the full enjoyment of the status of equal citizenship. Whenever some members of the society suffer burdensome costs in their public cohabitation with others, since they must hide some of their peculiar characteristics, or are prevented from a full enjoyment of some legal rights granted to others, then the ideal of the equal recognition of human dignity is denied. “The majority cannot take away the liberty for others to marry while retaining it for themselves” (Gerstmann, 2004: 176).

7.1.2 Symbolic Public Space as a Public Good Public conflicts over the reinterpretations of political concepts and social standards (or the deletion thereof) that have been established over time  −  and that for this reason are seen by some members of society as carved in stone − involve three main actors: political institutions including the judicial system; powerful groups and members of what is perceived as the majoritarian identity in that specific society; and finally members of less privileged groups and minorities. As I clarified in the previous section, political fights over public space cannot be reduced to distributive conflicts, as conflicts over individual interests, conveyed by the distribution of primary goods, are indeed salient (and a constant presence in our daily lives as socially engaged human beings), but not properly intractable, since what is at stake is the ‘quantity’ of goods distributed and the criteria for determining the distribution. On the contrary, political battles for full recognition of historically disadvantaged groups and identities imply a public affirmation of diversity that is non-negotiable, even when a compromise can be reached at the level of concrete policies (Galeotti, 1993, 2002). When analyzing battles for social and civil rights it is important to distinguish between the non-negotiable claim for equal inclusion in the public space that involves a fundamental symbolic recognition of members of disadvantaged groups and the concrete demands on which a compromise can be struck. Granted the recognition demand, the revision of the legal system in order to ensure the full enjoyment of certain rights to disadvantaged groups that have until now been prevented from such enjoyment, or the elimination of certain non-neutral symbolic features from the so-called neutral public space have, then, a restorative function.5 Due to  A case in point: in Italy many public offices and classrooms in public schools have a small crucifix on the wall. Lately there has been a debate over the necessity to remove crucifixes from publicly funded institutions in order to properly respect the neutrality of the Italian state. Some political parties and a section of the citizenry have criticized this proposal, defending the presence of crucifixes in public offices and schools as a symbol of Italy’s history and traditions, losing sight of the troubling effects that the decision to keep the crucifixes where they are would have for the neutrality of Italian society’s public space and the normative commitment to treat every identity at par. 5

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structural asymmetries that characterize our ordinary lives as socially embedded agents, the political circumstances of members of disadvantaged and/or discriminated groups are very different (and more burdensome) than those of individuals who belong to the group that is perceived as the cultural majority and who hold the positional power to determine the social standards and to shape the public space in their image and likeness. In European societies, for example, social standards have historically been set by a specific category of people: male, white, heterosexual, Christian. Members of cultural majorities often do not perceive their privileged social positioning as troubling or as a causing effect for power asymmetries and lack of visibility for other identities. They assume their social positioning to be granted de jure, as noble titles that are inherited by birth. I assume that the inability of many members of dominant groups to comprehend the justice-oriented reasons underlying specific demands for inclusion by members of disadvantaged or discriminated categories is due to a motivational deficit – recall, for example, the deliberative impasse I discussed in the previous chapter. Since public space, in its symbolic meaning, is one essential element of the social processes through which political societies produce and legitimate their self-perception and socially constructed concepts and standards, members of cultural majorities are motivated to fight against political demands to revise the public space to make it a more inclusive locus. Members of the majority, in fact, possess a fundamental strategic asset: a positional good to establish social standards and concepts that are usually then mirrored in the legal system and affect processes of decision-making. Given this relational dynamic between advantaged members of dominant groups, who have no incentive to give up their positional good, and the demands by disadvantaged members of the polity for full recognition and fairer treatment, it is understandable that these social battles are very hard to manage both legally and politically. Thus these fights, to be properly understood, require an adequate normative analysis of the kind I am suggesting in this chapter. A normative analysis unveils different dimensions of these fights, showing that concrete political demands − such as being able to wear the Islamic hijab in public schools (Benhabib, 2004; Scott, 2007) or to obtain the right of survivorship of one’s partner’s pension – almost always convey a deeper demand for the revision of historically determined political standards and meanings in order to properly shape the public space in a more neutral fashion. In the light of the illustration of these tense dynamics over the management of the public space of liberal societies, it appears that public space can be defined as a scarce and therefore contested good, involving power plays and conflictual dynamics, while being often and improperly defined as intrinsically neutral and unproblematic. The critical analysis that I propose in this section aims at showing that the struggle for political recognition cannot be fully resolved without tackling the partiality of the public space in its historical and contextual formation. Fights against the unwarranted (and concealed) partiality of public space are instances of the struggle for recognition, because reshaping public space involves building a new image of the polis and a new paradigm of visibility from the point of view of groups’

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identities.6 As we saw, conflicts over the management of public space are hard to pin down, since they involve subtle fights over socially constructed meanings and practices of recognition and misrecognition. Strictly allocative conflicts can be very harsh, but the dynamic at play it is more evident to all the agents involved. Instead, when dealing with symbolic aspects and structural analyses, it is more complex, even for the subjects of injustices, to vindicate reform and be heard on their own terms by other members of the polity. Assuming the paradigm of recognition respect that I have employed in previous chapters, we can claim that in democratic settings in which the ideal of political equality is fulfilled, every citizen should be fully respected qua human being, referring to the status of person as such, regardless of her attitudes, preferences, ascriptive characteristics, intellectual capacities, conceptions of the good, merits, etc. According to this reading, the social aspects of self-respect are strictly related to the institutional framework that grants equal political powers and public recognition to each citizen. In fact, a state cannot provide self-respect directly, but only ensuring adequate social conditions for it to develop (Schemmel, 2019). It follows, then, that the first social condition of self-respect consists in a proper institutionalization of the normative notion of recognition-respect due to every member of the constituency. The second social condition of self-respect is related to the social environment in which personal identities are formed and shaped. Extending marriage rights to same-sex couples is the right path for distributing more equally the social resources that partly support the roots of self-respect. It is a way of levelling an unfair social context rather than an unwarranted action for favoring same-sex couples over different-­sex couples, as sometimes publicly stated. In other words, it is important to stress that conflicts over the public space are not zero-sum dynamics, since unprivileged groups’ demands, if granted, would ameliorate a previously unjustifiable status quo of misrecognition, without involving a loss in recognition for the privileged members of the polity. Powerful members of society are pressed to share the power of establishing social standards and meanings, and these demands do indeed make the position of powerful members less privileged. Yet, against the backdrop of liberal equality, these historically and contextually ascribed privileges constitute unfair advantages that ought to be levelled down. In order to better understand these power dynamics over the control of public space, I shall briefly discuss the economic theory of public goods. In a seminal paper, Paul Samuelson defines a public good as a good “which all enjoy in common in the sense that each individual’s consumption of such a good leads to no subtraction from any other individual’s consumption of that good” (1954: 387). Starting from this mainstream definition, we can reason about the opportunity to define public space of a liberal democracy as a public good. According to classical liberal theory, in fact, the neutrality of the public sphere should allow everyone to pursue their own conception of the good life without enduring unwarranted interference from the state or suffering unjustified disadvantages because of a social and/or

 For a technical analysis of the philosophical concept of public space, see Ruppert (2006).

6

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political misrecognition of their identity, preferences and sets of values. In other words, the neutrality criterion set by liberal theories for structuring the public space seems to involve a notion of the public good similar to the economic account of public goods. Ideally speaking, in fact, public space in a liberal society is described as neutral in the sense that the enjoyment of this space by a set of citizens should not prevent others from full enjoyment of that same space. However, the allocation of the visibility good within public space is itself the subject of bitter clashes and compromises, since, as we have seen, members of cultural majorities do not readily accept surrendering their privilege to determine who deserves to be included within the public space as a first-class citizen. Specific demands may differ quite broadly (e.g. fighting income differences between members of different sexes; providing equal access to the institution of marriage; obtaining a permit to build a place of worship; denouncing the systemic tendency of law enforcement officers to discriminate against members of a specific race; etc.), however all these concrete demands can be subsumed under the most fundamental demand to be included in the public space of the democratic polis as equal citizens, without having to suffer discrimination or extra access costs. In other words, I assume that symbolic membership on an equal footing in the club of full citizenship within the public space of a liberal society is essentially a not material good that is a function of social relations. As we have seen, no allocation of a specific good or the access to the enjoyment of a particular right can be fully satisfactory in normative terms if it is not coupled with political and symbolic recognition of the subjects fighting to be fully included. Thus, I propose redescribing the fights over equal recognition in terms of a fight over the symbolic space of democratic societies that must be shaped in the terms of a public good. In order to better understand the demandingness of this ideal, let’s analyze the two features that characterize public goods in economic theory: (a) non-rivalry: consumption of the good by one individual does not reduce availability of the good for consumption by others; (b) non-excludability: no one can be effectively excluded from the enjoyment of the good. Specifically, public goods differ from private goods, that are both excludable and rivalrous, from club goods, excludable but not rivalrous, and from common goods, described as non-excludable, but rivalrous.7 Classic examples of public goods are the air we breathe, certain public infrastructures such as street lighting or lighthouses, public parks, environmental goods of various kinds, and national defense. Without going into the details of the theory, which involves many technical issues, such as, for example, dealing with free riding, negative externalities and maintenance costs, the definition of economic public goods is helpful to illustrate why the  Unlike private goods that are managed by the market, economic theory does not possess an instrument for evaluating the ratio between individuals’ self-interest and the price that everybody would be ready to pay for obtaining a portion of determined public goods. Hence, one of the main issues about public goods is the determination of the ‘demand function’. About this issue and for an interesting analysis of collective choices achieved via referenda, see Noam (1982). 7

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public space of liberal societies must be considered and managed as a pure public good. Indeed, the ideal of neutrality of the public space of modern liberal societies is well captured by the assumption that a perfectly neutral space should be enjoyable as a non-rivalrous and non-excludable good by every member of the polity. In other words, the ideal of liberal inclusiveness, together with the grounding principle of equal respect, provides sound normative reasons to transform the public space, understood as the symbolic locus where a political society reflects and shape its identity, into a good that is non-rivalrous and non-excludable for all identities that legitimately belong to the political community. From this general paradigm, it follows that when one denies same-sex couples the right to access the institution of marriage − access, it is worth remembering, that does not produce negative externalities for heterosexual members of political society, apart from depriving them of the unwarranted privilege to set social standards as they please − one is in effect denying same-sex couples equal recognition within public space, thus violating the principle of non-excludability. It follows that violating the non-excludability feature of the public space as a public social good implies a misrecognition of same-sex couples as fully respected members of the political community.8 This conclusion is a reconfirmation of the historical invisibility and discrimination suffered by members of the LGBTQIA+ community, as well as a further proof that members of privileged groups often have incentives to thwart any attempt to strip them of their positional power in determining the standards of inclusion in the public space. In the light of this long history of discrimination and invisibility, extending marriage rights to same-sex couples is the only appropriate solution to ensure that every member of the political community, regardless of their sexual orientation, can fully enjoy the status of first-class citizenship. Marriage equality would signify an extension of rights and opportunities to members of a minority group that were previously precluded from this legal setting, but also, this legal extension will have a profound symbolic significance in affirming the equal dignity of members of the LGBTQIA+ community in the context of the democratic public space.9

 Both Wellington (1995) and Wedgwood (1999) provide a normative defense of same-sex couples’ demands along the lines of the necessity for liberal democratic institutions to abide by the political principle of equality and therefore to legalize same-sex marriages. “So the law excluding same-sex couples from marriage are, prima facie, a violation of the principle of equality, and hence an unjust form of discrimination. So long as there is not sufficient evidence that allowing same-sex marriages would have uncontroversially harmful effects, the refusal to allow such marriages must be presumed to be seriously unjust,” Wedgwood (1999: 241). 9  It is worth mentioning that a section of the LGBTQIA+ community has strongly opposed the attempt to identify the political struggle for marriage equality as a priority for the entire LGBTQIA+ movement. According to this view, the fight over the extension of marriage rights to same-sex couples represents a selling-out of the LGBTQIA+ movement’s identity and of its history, as it would indicate that same-sex couples agree to conform to social standards historically imposed by heterosexual members of the polity. This debate is fascinating and would require an extensive discussion. I do not address it in this chapter, as what interests me is to illustrate the justice-­ oriented reasons that underlie the demand for marriage equality against the backdrop of a general paradigm of political legitimacy within liberal societies. 8

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7.1.3 When the Structural Asymmetries Kick in: Arguments Against Marriage Equality In the previous section, I investigated the conflict over the proposal of extending marriage rights to same-sex couples from the perspective of public ethics, highlighting the normative reasons in support of this extension. These arguments rely on the democratic ideal of political equality and on the normative principle of the recognition of equal dignity of every human being. Even though these arguments are not only solid, but also definitive, it is important to reckon that many members of contemporary western societies do not appear to be persuaded by these arguments (and by the legal ones that I will analyze in the next section). The extension of marriage rights to same-sex couples is still criticized by sectors of societies, and we have been observing backlashes of different forms in many countries. In order to fully grasp the meaning of this reluctance, if not utter opposition, to marriage equality, I shall briefly recapitulate the most common arguments raised against the extension of the right to marry to same-sex couples.10 In doing so, I will show how the debate at the level of public opinion can be redirected once the reasons of justice underlying the demand for marriage equality are adequately clarified. If my proposal in Chap. 6 for principled compromises is in anyway reasonable and feasible, it appears that a principled compromise solution over the conflict about marriage equality should prove reachable. Remember that in contraposition to strictly pragmatic or strategic accounts of compromise, I argued that members of dominant groups can be motivated to strike a compromise for principled reasons. This appears to be the case for the political negotiation over marriage equality, since it is a matter of fact that heterosexual couples today represent a stable majority in liberal countries. It follows that it is hard to imagine that marriage equality can be supported by the majority of the constituency simply for strategic reasons. Rather, it seems that positive solutions to this conflict require that a substantial number of majority members are ready to support marriage equality for principled reasons. This battle is fought along three different dimensions, all relevant for shaping the symbolic arena of the public space of democratic societies. First, there is the dimension of the normative analysis that provides reasons in favor of new institutional arrangements or for revising an unfair status quo. Second, there is the dimension of legal fights in courts for amending laws or proposing new ones with the goal of protecting (and extending) fundamental rights. Third, the formation of the public agenda depends upon inter-party dynamics and can be influenced by a visible and active group that tries to raise awareness about social injustices taking place in the ordinary setting of a society.11 As it happens, a portion of the citizenry, as well as some members of representative bodies, tend to resist demands for better inclusion  For an extensive analysis of these arguments, see Eskridge (1996), Galeotti (2008) and Gerstmann (2004). 11  For an illustration of the function that political parties can play as intermediate bodies connecting citizens to governments, see Wolkenstein (2016). 10

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and wider recognition of disadvantaged identities. It is, then, at this third level that it is relevant to assess the arguments most commonly employed in public arenas against the proposed changes in the institution of marriage. (a) A first argument against marriage equality is based on the assumption that the concept of marriage has a definitive and non-negotiable definition. According to this argument, it is logically inappropriate to ask for an extension of marriage rights to same-sex couples since, by definition, marriage is the legal and symbolic recognition of a long-term union between a man and a woman. The inherent fallacy in this argument consists in deriving from a descriptive fact − the historical process by which the concept of marriage was defined in a certain way − a normative conclusion concerning the ultimate meaning of marriage. A concept, it is important to recall, that is socially constructed.12 Naturally, this argument has strong appeal for members of culturally majoritarian groups as it reaffirms their priority in establishing the criteria for conceptualizing social standards and practices. As I have repeatedly pointed out, the fact that members of an historically formed majority maintain a monopoly in determining social and evaluative standards is in itself unfair and normatively unjustifiable. My argument for describing symbolic public space as a pure public good provides us with solid reasons to assume that the liberal ideal dictates a reinterpretation of social standards such that public space effectively becomes a non-rivalrous and non-excludable good. (b) A second argument refers to the religious roots of marriage, stating that marriage for same-sex couples should not even be a publicly discussed option, being inherently incompatible with the meaning attributed to the concept of marriage by the dominant morality.13 While this argument may satisfy the intelligibility requirement and can therefore be employed in public debates, it cannot be used as a grounding reason for an institutional rejection of the extension of the right to same-sex couples since this reason is not translatable into eminently public terms.14 Let’s recall that within liberal democracies, political decisions, to be legitimate, cannot be justified simply by referring to a particular moral doctrine (and one lacking any adequate public justification), even when this doctrine is actually supported by a majority of the population.

 In this regard, it is important to recall that “tradition does not justify continued injustice,” Snyder (2006: 100). 13  As a further argument on similar lines, some theorists argue that the proposal of same-sex marriage should be rejected, as it will likely ignite a slippery slope. According to this view, the legalization of marriage for same-sex couples would be a first step in a broader process for socially accepting moral turpitudes, such as polygamy, adult incest, and various forms of obscenity. For comprehensive rebuttals of the slippery slope argument, see Donovan (2002), Khalsa (2004–2005) and March (2010). 14  For an interesting analysis of the accessibility requirement of public justification in relation to arguments against marriage equality grounded in the value of tradition and references to the Bible, see Bardon (2018). 12

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(c) A further objection introduces the argument that the extension of the right to marry would imply a non-neutral act of symbolic approval of a particular sexual orientation by political institutions (stamp-of-approval-objection). By now it should be clear that this line of argument is subjected to a double standard, as it fails to recognize that the right to marry for heterosexual couples was never perceived as an act of approval by political institutions, as this option was interpreted by all as the ‘standard’ option. Notwithstanding the rhetorical grip that this argument may have on some members of society, the alleged non-neutral recognition that would follow the extension of marriage rights to same-sex couples is indeed a long-overdue and reparative action, which would make public space more neutral and inclusive, rather than the opposite. Same-sex couples do not look for any special treatment from political and legal institutions. Rather, they ask to be treated as equal before the law, therefore being granted access to a political institution regulated by the state and recognized as a fundamental right by the Universal Declaration of Human Rights (Schaff, 2004). As I have already argued, the political and symbolic fight over marriage equality represents a perfect example of the fact that the ideal of political equality imposes a more stringent standard of respect than mere tolerance of minority identities, thus requiring full recognition of those identities. It is about time that members of historically disadvantaged groups obtained full recognition in the public sphere.15 (d) A further argument against the legitimacy of same-sex marriage is based on the notion that the right to marriage is instrumental to procreation. According to the proponents of this argument, procreation constitutes an essential feature of the institution of marriage, and for that reason the extension to same-sex couples should be denied. Again, such an argument is hostage to a fallacious double standard, for many different-sex couples get married and do not have children. If procreation were indeed to be assumed as an essential feature of the institution of marriage, it would make sense to ask heterosexual couples to prove their willingness and/or physical and material ability to procreate before granting them access to the institution of marriage. Given that such a course of action seems extremely intrusive and frankly illegitimate for a liberal society, it is not then clear why this argument should have normative force when applied to same-sex couples. Procreation cannot be assumed as a condition sine qua non for granting the legal right to marry only when what is at stake is the inclusion of same-sex couples.16  For a technical comparison between the standard neutral-oriented view of toleration in the liberal tradition vis-à-vis a more nuanced and injustice-remedial account of toleration as recognition, see Galeotti (2002, 2008, 2010). 16  In discussing the nexus between procreation and the right to marry, it is important to keep in mind the further issue concerning the possibility of extending the right of adoption to same-sex couples. The debate distinguishes between guaranteeing only the right to adopt the biological child of one’s partner (stepchild adoption), and the more extensive option of guaranteeing the right to adoption tout court for same-sex couples. For a more exhaustive discussion, I recommend reading Burleson (2009) and Graham (2008). 15

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(e) Finally, it is important to mention a pragmatic argument focused on assessing the real chances for marriage equality to become a winning option in different social and political contexts. According to this argument, there are political contexts in which the fight for marriage equality can turn out to be strategically counterproductive, given the ample opposition to this option by a wide sector of the constituency and/or from parties’ representatives. The pragmatic argument suggests that when facing difficult political and social circumstances, proponents of marriage equality should rather seek to grant to same-sex couples the enjoyment of the same rights that would be obtained through the access to the institution of marriage, but through the institution of hybrid forms such as civil unions. This strategy would grant same-sex couples an important extension of rights, while eschewing the more contested and heated issue of modifying the institution of marriage, since this demand is perceived as far more destabilizing by members of the cultural majority. I agree that from a strictly pragmatic perspective this strategy might be more efficient and faster in achieving the recognition of important rights for same-sex couples. Yet, I believe that there are extremely compelling reasons of justice for refuting this pragmatic strategy. In order to be satisfactory, civil unions should be able to grant pretty much the same legal benefits, protections and rights that married couples enjoy thanks to the legal institution of marriage. If this is the case, why should same-sex couples settle for the recognition of their unions as a partnership rather than as a marriage? Settling for the civil union solution involves significant negative externalities, since it implies a symbolic restatement that homosexuality cannot be included within the paradigm of normality that shapes the public space of political societies.17 These wide arrays of arguments posed against marriage equality have in common an insensitivity (we can debate whether derived from a culpable or non-culpable ignorance) toward the justice-oriented reasons that support same-sex couples’ demand. In the first part of this chapter, I have already illustrated these normative reasons and shown that they are perfectly compatible with the general paradigm of liberal legitimacy that I defend in this book. A second level of analysis concerns the strictly legal dimension of this conflict. Naturally, these two dimensions of analysis are interrelated. The normative analysis is essential to conceptually clarify the political and symbolic aspects of this demand, as well as illustrate the power-related

17  “None of the options currently available to same-sex couples − ‘commitment ceremonies’ with sympathetic clergymen, private contracts, or ‘registered domestic partnership’  −  has a social meaning of this kind; none of these options is as familiar and widely understood as marriage. As a result, these options will be less effective than marriage for couples who want to affirm their commitment in a way that community will readily understand. […] In effect, they need to be able to say that they are married. Suppose that same-sex unions had a different name − as it might be, ‘quarriage’. There will presumably be many fewer same-sex quarriages than opposite-sex marriages; so the term ‘quarriage’ would be much less familiar and widely understood than the term ‘marriage’, and for this reason ‘quarriage’ would be less effective at fulfilling this serious desire than marriage,” Wedgwood (1999: 241, emphasis in original).

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dynamics involving members of different social groups characterized by stark differences in social positioning and public visibility. In the next section I shall engage with legal arguments provided in support of marriage equality. It will appear that legal arguments supporting institutional reform are fundamental within a general strategy for granting a substantive opportunity for historically discriminated groups to fully enjoy civil and political rights. However, legal arguments can prove moot or provoke disruptive backlashes, if not coupled with a constructive debate in the public sphere, where justice-oriented reasons are publicly expounded and discussed and citizens’ resistance to new proposals is addressed with respect and a reasonable attitude. Battles for equality and full recognition of disadvantaged identities cannot be won simply with legal decisions and reforms. When a modification of the legal code or procedural setting − through parliamentary decisions, constitutional court rulings, popular referenda, etc. − is not coupled with a public debate to raise awareness about long-lasting injustices taking place in that society, the political impact of these reforms can be greatly weakened. The effectiveness of law reform is closely linked to the public perception by citizens that the reform is supported by adequate (public) reasons and that the constituency has been engaged dialogically through parties’ actions, media coverage and informal debates in the public arena. One of the goals of this final chapter is to show that legal battles toward justice and public processes of compromise regarding the revision of social standards and basic ideals can fruitfully reinforce one another. Specifically analyzing the legal arguments for the extension of marriage rights to same-sex couples, Cass Sunstein (1994a, b, 1996), for example, has hinted at a progressive function that can be played by constitutional courts in favoring a shift in general public opinion toward more equal institutions.18 I agree that a justice-oriented court decision can push the social movement forward, challenging dominant cultural traditions and standards. For this reason, I maintain that it is relevant to consider the destabilizing function – vis-à-vis socially constructed concepts and political practices – that judicial review played in the history of civil rights movements.19 Yet, as theorists, we cannot overlook the fact that courts have a weak implementation capacity, especially for those decisions that run afoul of majorities’ opinions and preferences. In order to propel this progressive function that high appeal courts (sometimes) play, it is essential to accompany these decisions with public debates in which the symbolic dimension of the fights over recognition is properly expressed and debated. Otherwise, the risk is facing public debates sullied by unwarranted divisive arguments and where factions

 Some scholars have challenged the progressive function of the Supreme Court in United States history. See for instance Christiano (2008), who shares the same skepticism expressed by Dahl (1959) and Tushnet (1999). U.S.A constitutional history is a paradigmatic case of the difficult struggle for the advancement of rights (Ackerman, 2014). A history that indeed provides examples in favor both of the progressive and conservative interpretations of the U.S. Supreme Court role in the U.S.A society at large. For a more positive view of the progressive role of the U.S. Supreme Court, see Bickel (1986) and Pacelle (2002). 19  For an exhaustive analysis on the value of legal litigation as a booster for social and political progress, see Dupuis (2002) and Goldberg-Hiller (2002). 18

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defend their own unrestrained perspectives, falling prey to double standard fallacies and egoistic reasoning. Given this reinforcing dynamic, it is important to understand that social reform depends upon both top-down processes (institutional and legal reforms through parliamentary and judicial actions) and bottom-up actions (through contestations; enhancing visibility to injustices taking place; promoting respectful exchanges of reasons among citizens at the level of public debate, etc.).

7.2 The Adjudicative Role of Constitutional Courts In previous chapters I have discussed the so-called adjudicative role that some authors assume to be a prerogative of public reason as a general strategy to achieve justification in democratic settings. In more concrete terms, in this section I illustrate a similar role that is often – if not always for justice-oriented reasons – played by the higher appeal courts in different institutional settings. In the nonideal setting of constitutional democracies, governmental and legislative decisions are often the results of factional conflicts and strategic compromises, and they might even depend upon forms of majoritarian dictatorships. In these circumstances, broadly speaking, constitutional courts are called on to provide guardianship of fundamental rights and liberties against contested majoritarian outcomes by enacting mechanisms of checks and balances, constitutional interpretation, and judicial review.20 If we accept the image of democracy as a collective work in progress of correction and amendment from previous mistakes,21 constitutional courts play a unique function in the work of self-correction. They provide guardianship of individual rights against the attempts of the other branches of legal power to pass legislation or executive orders that can deprive some members of the polity of those rights (or refuse to restore justice in the face of historical injustices). I have argued elsewhere (Liveriero & Santoro, 2017) that constitutional courts do not carry unrestrained decisions − that would indeed be an unwelcome sign of unwarranted epistocratic power − as long as their decisional power is bound to fulfill the protective function of fundamental

 For an interesting take of Rawls’s proposal for an agreement over a background loose framework interpreted in constitutional terms, see Baier (1989). “But although there seems to be no consensus on a conception of justice, there is a consensus on something else, namely, on the procedures for making and interpreting law and, where that agreement is insufficiently deep to end disagreement, on the selection of persons whose adjudication is accepted as authoritative,” (1989: 775). 21  Bohman (2006: 183), for example, refers to Neurath’s famous metaphor of sailors who must reconstruct their wrecked ship on the open sea, therefore not being able to start afresh from the bottom, to highlight the self-reflexive character of democratic processes. According to this view, we need a holistic perspective to propose and realize adequate constitutional revisions. This characterization of democracy is perfectly compatible with the relevance that I attribute to reflective equilibrium as a general coherentist justificatory method to employ in political contexts of pervasive disagreement among fallible agents. 20

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rights on which their constitutional mandate ultimately rests.22 This view expresses a form of strong constitutionalism (Ackerman, 2014; Bellamy, 2007; Dworkin, 2011; Eisgruber, 2001), holding that supreme courts may act democratically even by overriding the decision of a majority when the protection of rights is at stake. In general, the legitimate authority of liberal democracy does not rest exclusively on the decision made by majorities; other forms of democracy − popular or plebiscitary − can also satisfy such a requirement but are not liberal democracies. Instead, I have been arguing in this work that part of the legitimacy of liberal democracies rests on the way in which decision-making processes and confrontational settings are conceived and protected. These are loci that should be designed to allow the expression of dissent and to safeguard minoritarian claims from silencing forces. Against this backdrop, it can be claimed that, when the exercise of judicial review appeals to the protective role of fundamental rights, supreme courts realize a genuine democratic power.23

7.2.1 Judicial Review: The Legal Case for Marriage Equality in the U.S. In a constitutional democracy, there are constraints on what the majority of citizens or legislative bodies can decide, and these normative limits are established by constitutions and bills of rights. From the legal, rights-based approach, constitutions and bills of rights represent the Archimedean fixed points of the normative framework of shared ideals and evaluative standards to which democratic decisions must conform. Specifically, in Chap. 4, I argued that these loose ideals and standards are justified as the objects of a general reflective agreement among reasonable citizens. The judicial role that is the prerogative of the higher appeals courts is compatible with the general justificatory paradigm that I defend in this work. More specifically,  An historical example of the protective role of rights fulfilled by Supreme Courts is the landmark decision Brown v. Board of Education, 347 U.S. 483 (1954) (https://tile.loc.gov/storageservices/service/ll/usrep/usrep347/usrep347483/usrep347483.pdf), in which the Supreme Court of the United States of America declared racial segregation in public schools unconstitutional. An example concerning the protective role played by the Court of Justice of the European Union is the recent judgment Google Spain v AEPD and Mario Costeja González (C-131/122014) establishing the right to privacy for individuals’ data published on the internet, the so-called ‘right to be forgotten’ (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62012CJ0131 &from=EN). 23  The most straightforward case against judicial review is developed by Waldron (2006). Waldron criticizes this exclusive power on two fronts. First, he claims that there is no conclusive reason to argue that the judicial power is better situated than legislatures in identifying and protecting rights. Second, judicial review is politically illegitimate, since, he argues, there is an overwhelming superiority of legislatures over courts in terms of legitimacy, equality, and participation that courts cannot emulate. For important rebuttals of Waldron’s approach, see Brettschneider (2007, 2011), Christiano (2008) and Lever (2009). 22

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the judicial processes through which policies and ordinary laws are evaluated in the light of a constitution’s main values, principles and codifications is normatively justified assuming that the defense of liberal rights must sometimes take precedence over the unrestrained outcomes of democratic processes (Ferrajoli, 2011; Snyder, 2006).24 In other words, the remedial role played by judicial review processes is justified against a backdrop in which liberal rights and democratic rights can and do often conflict. Once we accept a model of political legitimacy according to which majoritarian procedures are not sufficient to legitimize democratic decisions, it follows that in the search for a balance, there are instances in which liberal rights trump democratic rights when the former can be protected only at the expense of the rule of the majority (Christiano, 2008: 284–285). Establishing in which cases the defense of fundamental liberal rights calls for anti-majoritarian rulings is a prerogative of constitutional and supreme courts.25 The judicial literature over the debate for the extension of marriage rights to same-sex couples perfectly illustrates this point, since the legal defenses of the legitimacy of this extension revolve around the principle of political equality. Providing sufficient reasons to illustrate that marriage equality can be framed as a warranted claim starting from the paradigm of political equality upholds a normative obligation for constitutional courts to defend the extension of the right in question, regardless of the popularity that this proposal encounters in public opinion. Though the literature on the subject from the perspective of normative analysis is vast, (Dupuis, 2002; Eskridge, 1996; Gerstmann, 2004; Goldberg-Hiller, 2002; Schaff, 2004; Snyder, 2006; Sunstein, 1994a, b), theorists tend to agree on the fact that the U.S. Constitution was created to provide adequate legal tools to properly address the Tocquevillian concern about majoritarianism and potential tyrannical outcomes

 “Civil rights, legal equality, and human dignity cannot be legitimately revoked by the majority; they exist as inalienable human rights not subjected to community approval,” Snyder (2006: 7). 25  Brettschneider (2007) argues that the ideal of self-government justifies constraints on the democratic process, and that these constraints are justifiable without betraying democracy, therefore resolving the counter-majoritarian dilemma that arises given the tension between liberal and democratic rights. The case in point is when bad decisions are taken by majority rule. For Brettschneider such outcomes have a prima facie authority in virtue of the cluster of values underpinning the self-regulating mechanisms − including judicial review − of the legal system taken as a whole. The very same system though provides mechanisms of constitutional self-emendation that is a mark of democracy and the power of the courts stems from this institutional self-correcting structure. “Thus the appropriate way to understand justifiable judicial view is by appeal to a balancing model. Even though laws passed by democratic procedures retain normative force, the duty to uphold that law is overridden by another more fundamental duty to uphold and protect democratic values. On balance our duty to the values that constitute the core of democratic authority sometimes overrides our duty to laws passed by democratic procedures. But at times the duty to follow laws passed by democratic procedures trumps the duty to uphold the core values that ground democratic procedures,” Brettschneider (2011: 3, emphasis in original). 24

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of the rule of the many.26 Along these lines, these authors have developed different arguments to show that the U.S.  Constitution provides a legal and institutional framework in which the extension of the right to marry to same-sex couples ought to be granted by appealing to the Due Process and the Equal Protection Clauses, regardless of the majority’s opinion on the matter.27 The underlying idea is that even when powerful groups or members of the cultural majority oppose a revision of the (legal) status quo failing to acknowledge the justice-oriented reasons supporting the extension of a set of rights to a specific group of society, this opposition does not affect the pressing matter of rectifying the legal system in order to be loyal to the constitutional values of equality before the law and equal opportunity.28 With regard to the legal battle over marriage equality, it is worth unpacking the U.S. Supreme Court’s reasoning in Obergefell v. Hodges, 576 U.S. 644 (2015).29 The Supreme Court’s ruling is the outcome of many years of public discussion, legal conflicts and normative analysis in the grey area between political theory and judicial review.30 The most relevant argument developed within the U.S. judicial review debate in support of the extension of marriage rights to same-sex couples relies on the possibility of defining the right to marry as a fundamental right.31 When

 This is the case of majoritarian dictatorships, a threat that has long been feared by republican thinkers who saw in unrestrained majorities the risk of mob rule. James Madison, for example, urged that the instability of government due to factional conflicts is actually linked to the tyranny of the majority, for measures to resolve these conflicts “are too often decided not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority,” Madison, Federalist paper No. 10 (2009 [1787]: 49). 27  Massachusetts’ Supreme Judicial Court granted the right to marry to same-sex couples based on the state’s due process and equal protection constitutional law in 2003, and it was the first state to do so. Specifically, see Goodridge v. Mass. Department of Public Health, 440 Mass. 309 (2003). 28  In support of the thesis about the reinforcing dynamic between legal decisions and shifts in public opinion, it is relevant to note that public polls conducted in the United States have shown that since 2010, pretty consistently, just over 50% of the population have been in favor of extending marriage rights to same-sex couples. However, a poll conducted after the Supreme Court’s ruling (2015) found support for that decision by 53% of the population. Afterwards, the percentage of Americans supporting same-sex marriage has been increasing consistently post Obergefell v. Hodges over the years. A June 2020 Gallup poll found that two in three Americans (67%) supported same-sex marriage, while 31% opposed it (https://news.gallup.com/poll/311672/supportsex-marriage-matches-recordhigh.aspx). For an extensive theoretical analysis of the impact of reluctant – if not utterly hostile – public opinion in hampering the political and legal processes for the recognition of marriage rights for same-sex couples, see Lewis and Gossett (2008) and Lewis and Oh (2008). 29  https://supreme.justia.com/cases/federal/us/576/14-556/ 30  The legal case for marriage equality in the U.S. started with Baehr v. Miike, 910 P. 2d 112 (1996) decided by the Hawaii Supreme Court. Then, two well-known and deeply studied legal cases are Brause v. Bureau of Vital Statistics (1998) addressed by the Alaska Supreme Court and Baker v. State of Vermont (2000) decided by the Vermont Supreme Court. 31  Gerstmann (2004: 141) provides us with a set of criteria for determining if a right is a fundamental one: “to determine whether a right is fundamental, the Court should consider whether it squares with precedent; whether it is inherently connected to other rights, whether government exercises monopoly power over it; and whether it runs afoul of the political question doctrine.” 26

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the Supreme Court rules that some liberties are so important that they are deemed to be ‘fundamental rights’, this implies that generally the government cannot infringe upon them unless strict scrutiny is met.32 Fundamental rights can be recognized invoking either Due Process or the Equal Protection Clauses of the Fourteenth Amendment of the U.S.  Constitution, or, most often, both.33 The Supreme Court first recognized the right to marry as a fundamental right protected under the liberty of the due process clause in Loving v. Virginia.34 In this case and others following (for a technical analysis see Chemerinsky, 2019), the Court has established the right to marry as a fundamental liberty.35 Specifically on the debate concerning the scope of this right, that is, whether it includes a right to marry for same-sex couples, the litigation has revolved around the question whether laws denying marriage equality violated the right to marry or deprived equal protection to LGBTQIA+ individuals. Justice Kennedy, writing for the majority in Obergefell v. Hodges, explained that the Court long has protected the right to marry as a fundamental right under both the due process and equal protection clauses. The Court described four reasons why the right to marry is protected as a fundamental right: “the right to personal choice regarding marriage is inherent in the concept of individual autonomy”; the “right to marry supports a two-person union unlike any other in its importance to the committed individuals”; “it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education”; and finally, “this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.” (Id. at 12–16). Fundamentally, and in line with the arguments that  There are three standards of scrutiny available to the U.S.  Supreme Court when considering constitutional questions. In order to protect legal equality, plaintiffs’ categories are divided into three classes in order to determine which standards of scrutiny should be employed when dealing with citizens that have very likely been the object of discrimination. ‘Suspected Classes’ are protected by ‘strict scrutiny’, ‘quasi-suspected classes’ are protected by ‘intermediate scrutiny’, while others are protected by the standard level of scrutiny, the ‘rational basis scrutiny’. Naturally, establishing which categories belong to the different standards of scrutiny is a fundamental issue and a matter of controversy. Kory Schaff (2004), for example, convincingly argues that sexual orientation is a category that meets the criteria of suspect classification. It is worth highlighting that in Obergefell v. Hodges, the Court did not indicate the level of scrutiny that was being applied. 33  The Fourteenth Amendment Section 1 of the U.S. Constitution states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” https://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf 34  Loving v. Virginia 388  U.S. 1 (1967) (https://supreme.justia.com/cases/federal/us/388/1/). In Loving, the U.S.  Supreme Court declared unconstitutional Virginia’s anti-miscegenation statute that prohibited a white person from marrying anyone other than another white person. The Court’s opinion explained why the law deprived the Lovings, an interracial couple prosecuted in Virginia for violating the anti-miscegenation law, of constitutionally protected liberty without due process of law. 35  The Court’s most extended discussion of the right to marry can be founded in Zablocki v. Redhail 434 U.S. 374 (1978) (https://supreme.justia.com/cases/federal/us/434/374/). 32

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I defended in the previous sections, the Court recognized that, even though traditionally marriage was intended between different-sex couples, this is not a good reason against marriage equality. The Court clearly stated that a tradition of discrimination cannot justify continued discrimination. The Court concluded: “These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.” (Id. at 22). This legal strategy for extending marriage rights to same-sex couples grounding the decision in the fundamental right strategy has important merits. First, identifying the right to marry as a fundamental right prevents the debate about extending this right to same-sex couples to be formulated through the disruptive – and inaccurate – rhetoric of ‘special rights allocation’. Further, this legal approach, in establishing that the right to marry is a fundamental right, achieves an essential goal: showing that this is a legal circumstance in which the principle of equality should be respected regardless of what the majority of people in the country might think about the case. As I have previously illustrated, this argument hinges on the normative idea that legal institutions might sometimes limit the outreach of political bargains within democratic settings, in cases where an infringement of fundamental rights might be favored by such political processes. According to this view, once the democratic principle of political equality has been established by a constitution, the Court’s duty is to enforce rights even when they are unpopular.36 Granted this paradigm, however, it follows a further concern: how to establish limits on courts’ powers. In general, the legitimacy of the high courts’ protective role of rights against possible drifts toward majoritarian dictatorship is warranted so long as the courts’ actions are constrained by a doctrine of judicial restraint (Michelman, 2019; Pacelle, 2002).37 This doctrine partly relies on the determination of the prominence of the rights at stake. As we have seen, this is exactly the strategy embedded in Obergefell v. Hodges, where the right to marry is defined as a fundamental right, thus implying that the standard of strict scrutiny should apply, which means that the government

 Regarding the Equal Protection Clause, Cass Sunstein (1994b: 272–273) claims that it provides us with an anticaste principle: “The motivating idea behind an anticaste principle, broadly speaking Rawlsian in character, is that without very good reasons, social and legal structures ought not to turn differences that are irrelevant from the moral point of view into social disadvantages. They certainly should not be permitted to do so if the disadvantage is systemic. A difference is morally irrelevant if it has no relationship to individual entitlement or desert. Race and sex are certainly a morally irrelevant characteristic in this sense.” 37  “According to our deductions here, once potentially divisive disagreements over constitutional-­ essential applications have broken out in public, a Rawlsian supreme court will need, in order to fulfill its role in the constitution-centered program of justification, to be activist and strong-form, but also noticeably tolerant—if only up to a point. […] We have just been noticing, after all, how judicial tolerance for reasonable disagreements over constitutionality can serve as an emollient for the counter-majoritarian thrust of judicial-supremacist activism, which might otherwise be found unacceptable in a democracy,” Michelman (2019: 74).

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must justify its interference by proving that its action is necessary to achieve a compelling government purpose.

7.2.2 The Countermajoritarian Difficulty: Backlashes to the Courts’ Decisions In this section of the chapter, I have been claiming that decisions by supreme or constitutional courts can play a key role in the work in progress process of ensuring political equality and extending the ideal of full citizenship to every member of society. It is important to note, however, that courts’ role as ‘guarantor for the compatibility of political decisions with the background legal framework’, while essential, is often not sufficient to ensure effective implementation of inclusive policies. The effectiveness of legal decisions is deeply affected by social, cultural and institutional circumstances. For example, it has been observed that the political system, being often prone to elites’ and dominant groups’ desiderata, can push for backlashes against court decisions (Fontana & Braman, 2012; Friedman, 2000). Since progressive legal decisions by constitutional courts are often perceived by some members of the constituency as unwarranted impositions by unaccountable judges that interfere with the will of the people, there are many examples of political parties trying to gain political advantages from these frustrations, for example voting for restorative decisions in favor of the previous status quo endangered by the court decision.38 It appears that courts, given that their prerogative role is grounded in a countermajoritarian intuition, often incur a special form of public resistance for deciding conflicting issues of the day (Bickel, 1986).39 Related to the case that I am analyzing in this chapter, it is useful to recall two paradigmatic examples of backlashes voted for by legislative bodies in order to hamper the social movements and legal processes that were opening the gates to the

 Cass Sunstein (1995, 1996) is aware of such difficulties in implementing courts’ decisions. For this reason, he argues in favor of judicial minimalism; an approach to legal review that focuses more on determining the single case at stake, instead of making decisions with broad effects on a wide range of cases. Judicial minimalism claims that it is fundamental to leave space to public discussion and that, therefore, courts should leave as much as possible as undecided, determining what is right but not also establishing why it is right. 39  Michael Klarman (1994) provides an alternative account of the Brown v. Board of Education decision’s indirect contribution to the change in racial dynamics, specifically focusing on the backlash against Brown. In his view, Brown had the side-effect of crystallizing southern resistance to racial change, indirectly propelling a massive resistance and fostering an extremist political environment in which many politicians were predisposed to use whatever measures were necessary to maintain the Jim Crow status quo. 38

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legal recognition of same-sex marriage.40 In 2008, the California Supreme Court ruled in the In re Marriage Cases, 43 Cal. 4th 757, that laws treating classes of persons differently based on sexual orientation should be subjected to strict judicial scrutiny, and that an existing statute limiting marriage to different-sex couples violated the rights of same-sex couples under the California Constitution and may not be used to prevent them from marrying. As a perfect example of the backlash, a ballot proposition was presented, Proposition 8, which stated that “only marriage between a man and a woman is valid or recognized in California”. This proposition was voted for by the majority of California’s voters in the November 2008 state elections. When a lesbian couple and a gay couple challenged Proposition 8 in federal court, arguing that it violated the 14th Amendment Equal Protection Clause, the State of California refused to defend the statute in federal court, and citizens supporting Proposition 8 attempted to step in to defend the law. In June 2013 the U.S. Supreme Court issued a decision in Hollingsworth v. Perry, ruling that these citizens groups did not possess legal standing to defend the resulting law in federal court. This had the effect of overturning Proposition 8, though the Supreme Court did not ever rule on the merits of the case. In the same year, the U.S. Supreme Court overturned the federal DOMA statute as well in United States v. Windsor, another perfect example of a backlash by sectors of the legislative bodies in order to protect the unwarranted privileges of dominant groups. The Defense of Marriage Act (DOMA) was a federal law voted for by the two houses of Congress by a large majority and signed into law by President Bill Clinton in 1996. The DOMA defined marriage for federal purposes as the union of one man and one woman, and allowed states to refuse to recognize same-sex marriages granted under the laws of other states. Moreover, the Act codified non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, social security survivors’ benefits, immigration, bankruptcy, and the filing of joint tax returns. It also excluded same-sex spouses from the scope of laws protecting families of federal officers, laws evaluating financial aid eligibility, and federal ethics laws applicable to different-sex spouses.

 While I am revising this chapter, it appears that another paradigmatic example of backlash ruling against same-sex marriage in the U.S. is in the making, as of the beginning of 2022. A group of 24 Tennessee Republicans introduced in 2021 a proposal for a bill to undermine same-sex marriage rights in Tennessee. These Tennessee Republicans are proposing an “alternative” form of marriage in Tennessee called a “Record of Marital Contract at Common Law”. This proposal is now under consideration in the Tennessee Senate. This new kind of marriage contemplated by the legislation would only be available to marriages between a man and woman. Ultimately, the legislation appears to be a scheme to challenge the Supreme Court decision of Obergefell v. Hodges. The authors of the bill conclude the Supreme Court lacked “the authority to eradicate, alter, or modify the pre-legal and thus natural institution of marriage between a man and a woman acknowledged in human civilization throughout time and not conceivably subject to elimination by a constitutional amendment contingently appearing in our nation in the nineteenth century and which in no way purported to deny human realities universally acknowledged and practiced throughout history,” (https://legiscan.com/TN/amendment/SB0562/id/139086: 7–8). 40

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Consistently with my analysis in this chapter, these two examples of legislative acts to resist a demand for substantive inclusion and equal treatment by a minoritarian group exemplify the conflictual dynamic in which members of dominant groups fight against the attempt to curtail their privileges in the public arena. Often, this dynamic involves back-and-forth processes among legislative proposals and bills and subsequent legal battles over the legitimacy of these acts, and vice versa, when legislative acts are drawn up with the goal of resisting the implementation of legal decisions and weakening their progressive consequences against a structurally unjust status quo. As a last example of this dynamic, I shall illustrate a more recent case, concerning whether owners of public accommodations can refuse certain services, such as making a customized wedding cake for the marriage of a same-sex couple. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S.  Ct. 1719 (2018), the Supreme Court of the United States had to determine whether owners of public accommodations can refuse certain services based on First Amendment claims of free speech and free exercise of religion, and therefore be granted an exemption from laws ensuring non-discrimination in public accommodations. Specifically, the case dealt with the Colorado state law that prohibits discrimination based on sexual orientation in places of public accommodations, including business. When Masterpiece Cakeshop, a bakery in Lakewood, Colorado, refused to provide a wedding cake to a gay couple based on the owner’s religious beliefs, the Colorado Civil Rights Commission, a state agency tasked with enforcing Colorado’s anti-discrimination law, found Masterpiece Cake to be in violation of the state statute, ruling for the couple. The owner of Masterpiece Cake appealed, saying that the anti-discrimination statute violated his First Amendment right to freedom of expression and freedom of religion. Following appeals within the state that confirmed the Commission’s decision, the bakery took the case to the U.S. Supreme Court. In a 7–2 decision, the Court ruled on narrow grounds that the Commission did not employ religious neutrality, violating the Masterpiece owner’s rights to free exercise of religion, and reversed the Commission’s decision but did not overturn the state statute.41 This case highlights a direct collision between the demands of anti-­ discrimination laws and what the vendor claimed to be the dictates of his sincerely held religious beliefs. This case, although limited in its legal consequences, since the Court did not rule on the broader intersection of anti-discrimination laws, free exercise of religion, and freedom of speech, due to the complications of the alleged Commission’s lack of religious neutrality, ignited a clamor and a wide public debate. Justice Kennedy, writing the majority opinion, stated that the Commission’s review of the Masterpiece owner’s case exhibited hostility towards his religious views, preventing the Court from ruling in favor of the Commission. However, Kennedy specifically affirmed that states can pass their own anti-discrimination laws to protect same-sex couples  For a technical analysis of this case, see Barker (2019) where the author tries to determine whether some forms of religious objection to conduct otherwise required by anti-discrimination laws can be accommodated without severely undermining the important ends served by those laws. 41

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and gay rights, a point also agreed to by Ginsburg’s dissent.42 In this sense, the Supreme Court left unresolved a central question running through this case: can the law ever grant religious exemptions to places of public accommodations without severely undermining anti-discrimination laws? For supporters of same-sex marriage, this case threatens to roll back gains against unequal treatment (Velte, 2016), while for religious opponents of same-sex marriage, this case fulfills the Court’s promise, in Obergefell v. Hodges, that their sincere convictions would be respected. The public debate over this case revolves around the possibility of striking a legal balance between fulfilling the fundamental commitment to anti-discrimination and, on the other hand, respecting the rights of conscience, granting a minimal scrutiny of beliefs in order to accommodate religious beliefs in the public arena. In the decision, the Court warned about the risk that too-expansive rights of exemption can harm LGBTQIA+ individuals and damage the government’s ability to protect special categories against discrimination. In line with the analysis that I have provided in this chapter, the Court spoke of the risk of a community-wide stigma that could be inflicted on the LGBTQIA+ community, if existing, generally accepted religion-­ based exemptions – such as excusing clergy members from performing same-sex weddings – were not confined.43 On the other hand, the Court granted some weight to religious-related objections to certain types of work that are uniquely expressive and hence could be felt as incompatible with one’s religious identity. This case is very interesting, since it relates to many topics developed in this book, from the analytical distinction among different justificatory reasons that can be employed in a liberal setting, to the role played by comprehensive doctrine in shaping citizens’ reactions to laws, political decisions and co-citizens’ demands, to the normative urgency of providing symbolic recognition of identities that have

 “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018, at 9). There remains no federal protection from discrimination in places of public accommodation based on sexual orientation, although the Supreme Court recently held that a federal statute prohibiting employment discrimination on the basis of sex also applies to discrimination based on sexual orientation and gender identity. See Bostock v. Clayton County, 140 S. Ct. 1731 (2020). 43  “This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018, at 10). 42

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suffered historical disadvantages and discrimination.44 On my theory, the Court ruled sensibly, avoiding making a broad ruling on conflicts that can arise in the intersection of anti-discrimination laws and free exercise of religion, therefore paying respect to the general ideal of court restraint, yet firmly highlighting the important normative tenets around which an accommodation of cases like this should revolve. Indeed, we can conclude that a tolerant and ultimately liberal society should at least strive to achieve some form of accommodation among these conflicting rights. “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018, at 18).

7.3 An Adequate Compromise? The Case of Civil Unions in Italy As a last point of analysis, I wish to engage with another concrete case study, that is, the institutionalization of civil unions for same-sex couples in Italy. The public and parliamentary debates that preceded the vote were extremely heated and involved many of the dynamics that I have been illustrating in this final chapter. The bill was first presented as a parliamentary initiative by Senator Monica Cirinnà. This proposed bill,45 after amendments introduced during the parliamentary process (S.2081),46 was approved by the Senate on February 25, 2016 and signed into law by the President of the Republic Sergio Mattarella on May 20, 2016. This bill regulates the institution of civil unions for same-sex couples and grants some legal recognition to unmarried different-sex couples who wish to demand legal recognition of their status. Although the establishment of the register of civil unions finally guarantees legal recognition for same-sex couples who wish to apply for it, the maintaining of a legal distinction between civil union, available only to same-sex couples, and marriage, accessible only for different-sex couples, entails a

 For an interesting analysis of the symbolic harm ignited by the Masterpiece owner’s refusal to provide a cake for a same-sex couple wedding, see Corvino (2018). “In Masterpiece, members of a long-persecuted minority, not yet assured of equal marriage rights (recall that the case originated in 2012), are painfully reminded of their ongoing inequality. Upon entering a shop open to the public and perusing a catalog of beautiful cakes sold there, the couple is told: Those are not for you. Such unpleasant surprises, particularly during the emotionally fraught process of wedding planning, can conjure deep shame and stress. These effects are compounded for those who have heard similar messages from an early age— from society, from their pastors, even from their own parents: Love and marriage are not for you,” Corvino, (2018: 17, emphasis in original). 45  http://www.senato.it/leg/17/BGT/Schede/Ddliter/46051.htm 46  http://www.senato.it/leg/17/BGT/Schede/FascicoloSchedeDDL/ebook/46051.pdf 44

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prejudicial diminishment − with a strong symbolic impact – of the social recognition of same-sex unions. Note further that the institution of civil unions is restricted to same-sex couples, whereas unmarried different-sex couples have access to registered partnerships, again introducing an institutional distinction between same-sex and different-sex couples. Given my general thesis in favor of a normative approach attuned to nonideal circumstances, in illustrating this case it is important to understand the political context in which this debate developed. Historically, the Italian social and political context is prone to give particular weight to arguments referring to the Catholic roots of the Italian public sphere and community mainstream traditions. This means that a relevant portion of the citizenry is receptive to arguments referring to the religious roots of marriage, which I have already debunked in Sect. 7.1.3 of this chapter. Moreover, the parliamentary context presented further difficulties: given the proportional representation electoral system, Italian governments are often composed of a coalition of different parties and the two chambers are characterized by a deep fragmentation of political forces. The Democratic Party, the leading force of that government and the main supporter for a bill in favor of same-sex couple rights, was fractured by intragroup conflicts among different factions. Among those factions, there was a powerful group of Catholic Democrats who frustrated any attempt to work for a more ambitious bill on marriage equality. Given the foreseeable parliamentary opposition from the conservative parties, and facing infighting within the Democratic Party itself, the government coalition settled for an attempt to pass a bill focused on the institution of civil unions. It is worth noting that Sen. Cirinnà, the first proposer of the bill, anticipating a backlash from a section of Italian society, purposely decided to remove from the bill any reference to the notion of marriage, while, at the same time, referring to every right encompassed by legal marriage, including inheritance rights, survivor’s benefits and the right to stepchild adoption. The main difference from the legal institution of marriage reserved to different-sex couples was barring couples entering into a civil union partnership from jointly adopting a child.47 Again, given the fact that the institution of civil unions, as defined by the bill, was constructed with the purpose of granting same-sex couples the access to almost all the rights encompassed by marriage, it appears obvious that the decision to  I will not delve here into the harsh debate that took place, both at the parliamentary level, in the media and in civil society, regarding the opportunity to maintain or delete from the Cirinnà Bill the right to stepchild adoption. In order to increase the chances for the Bill to pass the parliamentary vote, the proponents of the Bill decided to remove article 5 which would have guaranteed the possibility of adopting the natural child of the partner by the other member of a same-sex couple. It is worth noting, however, that in many recent legal judgments, the Italian Juvenile Court, referring to article 44 letter d) of Law 184 governing special adoptions, has legislated in favor of the adoption of the biological child of one partner by the other partner within a same-sex cohabiting couple. Consistently with a progressive reading of the higher appeal courts’ role in liberal societies, it can be observed that the Juvenile Court of Rome has been playing a protective role for children and parental rights within same-sex families against a political environment that has proved not ready yet to find an adequate compromise for regulating adoption laws for this category of citizens. 47

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legally and symbolically distinguish between these two institutions was supported by a pragmatic strategy focused on bypassing the predictable public contestation of the bill by a sector of Italian society. Against the paradigm that I have defended in this chapter, it appears that this strategy may be defended only for pragmatic-­ oriented reasons, focusing of the substantive gain for same-sex couples in finally being included in the enjoyment of an extremely relevant set of rights. Yet, this solution exemplifies a political context in which the opportunity to guarantee the enjoyment of specific rights (e.g. the possibility of obtaining the right of survivorship for one’s partner’s pension; rights and duties relating to health care and prison; access to benefits in the tax code depending upon belonging to a particular family unit; inheritance rights, etc.) is conceptually and practically detached from a general demand for full recognition of the LGBTQIA+ community. From a strictly normative perspective, then, supporting the institution of civil unions has a cost: the legal and symbolic distinction between marriage and civil unions only exacerbates the inequity of treatment suffered by same-sex couples in the public arena. Ultimately, settling for a battle in favor of civil partnerships is not enough, since this solution completely ignores the symbolic aspects of the matter. As proved by the cautious framing of the Cirinnà Bill, the solution provided by the institution of civil unions was envisaged to avoid conflicts over the opportunity of publicly engaging civil society in a process of re-conceptualization of marriage. In a sense, this strategy could even reinforce the perception that the dominant morality is untouchable. Indeed, dominant groups are not properly challenged in their privileged positional role in establishing social standards and norms if the only practical solution to this conflict involves constructing a new social concept and legal institution that leaves marriage as a prerogative for different-sex couples. Signaling that same-sex couples ought not dare ask for marriage equality, but rather be happy with civil unions, implies a reinforcing dynamic of inequality and misrecognition. Once it is clarified that the full recognition of minorities and of disadvantaged groups in liberal societies depends upon not only ameliorating the legal and institutional setting, but also on a careful revision of the symbolic public space in which a political society reflects its image, it follows that the option of granting same-sex couples access to the institution of civil unions only reaffirms the discrimination between first-class, heterosexual citizens, who are granted the right to marriage, and second-class citizens who have access to civil unions and registered partnerships. Even if the institution of civil unions were to guarantee the same rights as marriage, such a regime could be defined as nothing more than second-best, since same-sex couples remain symbolically discriminated against, as such a system continues, cruelly, to attest to the ‘inadequacy’ of same-sex couples to access the institution of marriage, whose traditional value and immutable meaning is reaffirmed, rather than contested. Again, this case study perfectly underscores that very often the symbolic dimension of political struggles for recognition are underestimated and inadequately understood by politicians, members of government and public opinion. Let me add, though, that defending a general normative approach, that emphasizes the symbolic meaning of political fights for equal recognition, should not prevent us from celebrating the institution of civil unions in Italy. Given the political

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environment, the fragmented public opinion perspective, and the influential role played by the Catholic Church establishment in Italian society, I maintain that there are contextual circumstances that support reading the institution of civil unions as good news for members of the Italian LGBTQIA+ community who wish to have their legal rights recognized as part of a stable family unit. Although this solution is not ideal from a normative point of view, there are important consequentialist incentives for striking this compromise and accepting the Cirinnà Bill as a starting point in the long battle over marriage equality.48 It is worth remembering that in the ­previous chapter, in defending compromise as an appropriate strategy for managing political conflicts in democratic settings, I shared Weinstock’s intuition that, among other reasons, it is possible to support principled compromise for reasons that are at least partially sustained by consequentialist intuitions, that take into account the contextual circumstances in which political conflicts have arisen. This kind of reasoning still ascribes priority to principled reasons, such as fulfilling the ideal of equal respect and granting political equality before the law, but is not insensitive to consequentialist valuations that justify a compromise solution as an adequate second-­best solution that it allows justice to be promoted as far as possible, all things considered. Specifically, it is not inconsistent, according to this approach, to maintain that the institution of civil unions is far from being the normatively satisfactory solution to the conflict regarding same-sex couples’ demand to be granted marriage rights, while, at the same time, defending civil unions as a partial amendment to an unjustifiable state of affairs. To conclude, what is the final assessment of the Italian law instituting civil unions for same-sex couples? On the one hand, it can be said that the Cirinnà Bill represents a pragmatically satisfactory compromise all things considered − it is important to remember that there were days when it seemed that the Bill would not pass the parliamentary vote. On the other hand, we ought to be aware that the fight is not over, and will not be until marriage equality becomes law in Italy.49 Fully embracing the work in progress account of democratic progress that I defend in this book, it is important to realize that, apart from substantially ensuring  In support of this conclusion, it is relevant to point out that recently, in June 2017, the German Federal Government extended marriage rights to same-sex couples, after having granted them access to the institution of registered partnerships since 2001. The benefits granted by these partnerships were gradually extended by the Federal Constitutional Court throughout several rulings until they provided for most of the rights of marriage, therefore being conducive to less factious conflicts over the establishment of same-sex marriage in the 2017 decision. 49  Consistently with this second conclusion, it is relevant to add a final cautionary tale, unfortunately exemplified by a political conflict that is developing right now in Italy (Spring 2021). The Democratic Party is supporting a bill proposal, DDL Zan, against discrimination and violence on the grounds of sexual orientation, gender, gender identity and ableism. The bill has been hindered since the first moments of its presentation by the conservative parties and is now sitting in the Senate Justice Commission, awaiting a ruling. Meanwhile, a big debate has arisen within civil society with many artists and activists publicly supporting the bill and factions assuming opposite positions over supporting or barring the bill, often defending specious views and introducing misleading arguments, marring the entire debate over the proposed bill. https://www.senato.it/service/PDF/PDFServer/DF/356433.pdf 48

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the enjoyment of fundamental rights to same-sex couples previously excluded from this enjoyment, the institution of civil unions could be a facilitator in shifting public opinion in Italian society on this matter. Social standards and norms are socially constructed and modifying them takes time. Also, as we have observed, legal rulings are often not sufficient to support these changes while preventing backlashes from political parties and sectors of public opinion. In this sense, the institution of civil unions can help in promoting the public presence, and acceptance through familiarization, of same-sex families in the Italian public sphere, paving the way for a fuller revision of the institution of marriage in the future.50

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 Looking at opinion polls, a Eurispes poll conducted in early 2009 showed that 40.4% of Italians supported same-sex civil marriage, while 18.5% supported civil unions but not marriage. A May 2013 Ipsos poll found that 48% of respondents were in favor of same-sex marriage and another 31% supported other forms of recognition for same-sex couples. In January 2016, right before the vote on Cirinnà Bill, a poll showed that 46% were in favor of same-sex civil unions with 40% against. With regards to same-sex marriage, 38% were in favor and 55% were against. In 2019, a poll conducted by Eurispes found that 51% of Italians supported the legalization of same-sex marriage. Same-sex adoption was supported by 31.1%, while 68.9% were against it. According to a May 2019 Ipsos poll, 58% of Italians were in favor of same-sex marriage. Again, as in the U.S. example, it appears that a familiarization effect prompted by the institution of civil unions for same-sex couples, along with a wider debate in the public sphere regarding this issue, had positive effects on public opinion’s support for marriage equality. 50

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Sitography Brown v. Board of Education, 347 U.S. 483, 1954.: https://tile.loc.gov/storage-­services/service/ll/ usrep/usrep347/usrep347483/usrep347483.pdf Cirinnà DDL: http://www.senato.it/leg/17/BGT/Schede/FascicoloSchedeDDL/ebook/46051.pdf Gallup Poll on same-sex marriage support, June 2020: https://news.gallup.com/poll/311672/ support-­sex-­marriage-­matches-­record-­high.aspx Goodridge v. Mass. Department of Public Health, 440 Mass. 309, 2003.: http://masscases.com/ cases/sjc/440/440mass309.html Google Spain v AEPD and Mario Costeja González (C-131/122014): https://eur-­lex.europa.eu/ legal-­content/EN/TXT/PDF/?uri=CELEX:62012CJ0131&from=EN Loving v. Virginia 388 U.S. 1, 1967.: https://supreme.justia.com/cases/federal/us/388/1/

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Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 2018.: https://www. supremecourt.gov/opinions/17pdf/16-­111_j4el.pdfù Obergefell v. Hodges, 576 U.S. 644, 2015.: https://supreme.justia.com/cases/federal/us/576/14-556/ Tennessee Bill Proposal “Record of Marital Contract at Common Law”: https://legiscan.com/TN/ amendment/SB0562/id/139086 The Constitution of the United States of America: https://www.gpo.gov/fdsys/pkg/ CDOC-­110hdoc50/pdf/CDOC-­110hdoc50.pdf Universal Declaration of Human Rights: https://www.un.org/en/about-­us/universal-­declaration-­ of-­human-­rights Zablocki v. Redhail 434 U.S. 374, 1978.: https://supreme.justia.com/cases/federal/us/434/374/ Zan DDL: https://www.senato.it/service/PDF/PDFServer/DF/356433.pdf

Chapter 8

Conclusion

Abstract  In writing this book, I had two fundamental purposes: (i) to propose a revised account of liberal legitimacy within a general paradigm of relational liberalism and (ii) to adequately clarify the different goals, methodologies and justificatory tasks that characterize the ideal and nonideal phases of a justificatory paradigm for democratic decisions. In this work I started my analysis from the assumption that these two purposes are strictly related, and my goal was to underscore that the ambitious justificatory project of liberalism faces internal tensions and to propose a way out of these tensions. In order to solve these difficulties of the traditional accounts of liberal legitimacy, I have proposed a justificatory framework aimed at guiding actual decision-making processes and avoiding indeterminacy (guidance), defining standards that everyone has equal opportunity to fulfill (inclusion), and granting that citizens exercise their reflexive control over the whole democratic system (reflexivity). As I argue in this work, this framework relies on a dual justificatory strategy that involves both ideal and nonideal analyses. Keywords  Liberalism-frame · Liberalism-painting · First-class citizens · Institutional reform In writing this book, I had two fundamental purposes: (i) to propose a revised account of liberal legitimacy within a general paradigm of relational liberalism and (ii) to adequately clarify the different goals, methodologies and justificatory tasks that characterize the ideal and nonideal phases of a justificatory paradigm for democratic decisions. These two purposes are strictly related, since I have underscored an inherent tensive dynamic that characterizes traditional paradigms of liberal legitimacy and I have proposed a way out of these tensions that involves a two-stage justificatory paradigm. I have shown that the ambitious justificatory project of liberalism faces internal tensions, as it is extremely hard to maintain a balance between two fundamental desiderata of a liberal account of political legitimacy: the philosophical requirement to provide justificatory reasons, both normatively binding and motivationally powerful (philosophical-normative desideratum), on the one hand,

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and the realistic requirement focusing on feasibility constraints, namely the condition that a theory of justice should be consistent with the actual circumstances of justice (realist desideratum), on the other. I have argued that an account of liberal legitimacy that depends upon idealized circumstances cannot guide actual democratic procedures efficaciously, because it sets standards and goals that actual democratic systems cannot reasonably be expected to achieve. In order to solve these difficulties of the traditional accounts of liberal legitimacy, I have proposed a justificatory framework aimed at guiding actual decision-making processes and avoiding indeterminacy (guidance), defining standards that everyone has equal opportunity to fulfill (inclusion), and granting that citizens exercise their reflexive control over the whole democratic system (reflexivity). As we have seen,  this framework relies on  a dual justificatory strategy that involves both ideal and nonideal analyses. According to this twofold model of legitimacy, a normative account of justification for democratic decisions cannot rely solely on standards that are drawn from an idealized analysis, as this attempt will be doomed to fail in two ways: (i) delegitimizing actual democratic decision-making processes while being unable to capture structural instances of injustice and misrecognition; and (ii) undermining the actual possibility to implement decisions that are justified through processes that involve strong idealizations. Against this backdrop, I have suggested to clearly distinguish between the goals and strategies of the ideal and nonideal phases. Specifically, the ideal stage of the theory, by placing the focus on normative-philosophical arguments engendered from certain relevant idealizations, aims at publicly justifying a general loose framework of shared standards, ideals and principles. At this stage, the justificatory procedures rely on demonstrating that idealized citizens, in meeting the constraints imposed by the reasonableness requirement, would publicly agree on the value of this liberal background framework. This normative framework for intersubjective reasoning establishes a set of norms and standards that should govern the process of raising and contesting political claims and moral intuitions within social settings. The main goal of the ideal phase of the theory is showing that, if the normative justification is satisfactory, reasonable citizens would then be committed to respect this framework of norms and standards when engaged in public discussions over political matters. That said, it remains to clarify how we can get to the point where a majority of real-life citizens show the willingness to act as reasonable citizens would act. In fact, one of the main goals of the first half of the book has been to argue that justificatory arguments based on strong idealizations cannot perform the entire normative task, as often assumed by liberal theorists. To respect the reflexive agency of citizens properly, a general paradigm of political legitimacy ought to problematize whether and how the justificatory model of political liberalism is reconcilable with the preferences, interests, beliefs (and agential finitude) of real-world citizens. In this regard, I have proposed a model of political legitimacy in which the distinction between reasonable and unreasonable citizens is less relevant, even though still present, because the stability of a political society stems from political institutions’ ability to include every citizen in the deliberative processes, notwithstanding their level of adherence to liberal ideals.

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Against nonideal circumstances, I have argued, it becomes relevant to establish whether we can expect a majority of citizens to agree, everyone starting from their own doxastic perspective and motivational set, on the validity of some general normative ideals, evaluative standards and liberal principles. The point here is that a democratic regime, thanks to actual institutional practice, should prove capable of motivating actual citizens to establish a meta-agreement on the validity of a justificatory framework. The idea is that actual citizens, when called upon to deliberate upon political matters, might be able to converge on an antecedent meta-agreement over an adequate evaluative framework for assessing the validity of every proposal introduced into the deliberation. When political decisions are reached through processes that respect this shared (by a majority of citizens) justificatory framework, this means that all reasonable citizens would have sufficient reasons to accept the legitimacy of these political decisions, notwithstanding the fact that for some of them these might be wrong decisions or, more mildly, not represent the best option among those available. The paradigm that I have defended delegates to each citizen the task of finding ways for coherently including background norms from the loose normative framework justified in the ideal stage within their doxastic system of beliefs and comprehensive doctrines. Under nonideal circumstances, in fact, the only way for dealing with deep disagreement while respecting the agential autonomy of citizens is to translate the justificatory problem into a more tractable deliberative one. In this work, I have acknowledged that the actual willingness of citizens to accept a normative framework of evaluative standards cannot be taken for granted. The possibility of increasing the number of citizens who accept the normative framework of evaluative standards and who, consequently, are able to deliberate over political matters respecting such normative standards, cannot rely, as I have argued, exclusively on theoretical arguments provided in the ideal stage of the theory. Rather, it mostly depends on the ordinary practice of public discussions and confrontations and on the democratic institutions’ ability to foster the democratic attitude in citizens. From this it follows that the goal of the nonideal stage of the theory is providing reasons to citizens to approach political conflicts knowing that they are bounded by a shared normative framework that grants the convergence on the validity of some basic norms, ideals and procedures. In this sense, I have assumed that the normative justificatory framework can work as a ‘framing device’, constraining reasoning over political matters to respect loose evaluative standards and normative ideals that are partly inferred from the ongoing democratic practice contextually characterized. Metaphorically, I have described political liberalism as composed of two dimensions: a liberalism-frame and a liberalism-painting. The liberalism-frame represents the loose normative framework outlined in the ideal stage of the theory. This normative framework functions as a standard for establishing adequate processes of decision-­making and confrontation among citizens. This liberalism-frame provides the structure, the frame, around which real-life citizens and political institutions can then engage in building a stable liberal democratic society. The liberalism-painting, on the other hand, represents the phase in which actual political decisions are taken.

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The liberalism-painting stands for the daily routine of the democratic game: the deliberative and confrontational moments; election days; debates in the public sphere; the parliamentary dynamics; review processes by the judicial system; conflict management; ex-post contestation of laws and political decisions; etc. My main proposal has been to claim that, even though at the nonideal level the theoretical and practical tools that the theory of justice can employ for dealing with actual disagreement are different from those available in the ideal stage, it is plausible to expect that even nonidealized deliberative processes can appeal to the loose liberal justificatory framework as guidance for normative reasoning. The arguments and analyses that I have introduced in this book aim at defending a political legitimacy model that ensures legitimate outcomes in a context of deep pluralism by acknowledging members of the polity as reflexive agents, rather than mere beneficiaries of policies imposed by institutions. A normatively legitimated system of decision-making should respect pluralism, allowing citizens to express their differences and disagreement properly, and still must be able to provide acceptable political solutions to conflicts. Furthermore, I have argued that in the practice of exchanging reasons to reach a public agreement over political matters, citizens should share practical and epistemic authority, both as co-authors of the political decisions and as fallible epistemic agents who disagree but have good reasons (practical and epistemic) for respecting one another. In order to defend this quite demanding conclusion, I have provided a technical analysis of the actual epistemic circumstances of justification. This investigation is related to the epistemology of disagreement literature that provides important insights for demonstrating that disagreement is not a practical obstacle that prevents participants from agreeing on virtually correct solutions; rather, it is exactly in virtue of the fact of disagreement that democracy is the best method for collective decisions. The heart of this proposal is that, given the nonideal epistemic circumstances of justice (i.e. the doxastic presupposition; the fallibilist clause; the pervasive disagreement due to an opaque appraisal of evidence; our limited epistemic capacities), the normative promise of democracy to grant equal respect to every citizen can be expressed, in epistemic terms, by the claim that participants in collective decision-making processes should concede to each other the status of putative epistemic authorities. In other words, citizens have good reasons for respecting a symmetric credibility constraint and, when sincerely engaged in a decision-making process, they must attribute some (even minimal) epistemic credibility to other parties’ perspectives. This means that citizens should recognize that they owe their fellow citizens some sort of response and that they have a prima facie duty to be tolerant of the views of others. Here the argumentation has moved from two premises: first, that a well-functioning democracy must allow citizens to fight for the recognition of their own interests and rights; second, that the epistemic circumstances of a real-world democracy are such that claims of knowledge, interests and rights are essentially contested. These considerations are crucial for a conception of democracy, because, I have argued, they provide agents with epistemic reasons to ascribe to fellow citizens the status of ‘epistemically capable agent’, granted the satisfaction of minimal criteria. This finding is one of the most original contributions of the first part of the book, as it shows

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that the contemporary political debate over the ideal of political equality has been overlooking the epistemic dimension of the basis of equality and the influence that this dimension has on different models of democratic legitimacy. In general terms, this normative (and epistemic) framework of political legitimacy that revolves around the ideal of co-authorship refers to two fundamental dimensions of equality. The first dimension is represented by the proceduralist tenet according to which equality has a non-instrumental value exemplified by the ideal that every member of the constituency should be acknowledged as a political actor and any voice, in the political arena, should be given equal weight. The second dimension hinges on the acknowledgment that entrenched disagreement is a likely outcome of collective-decision settings. Therefore, reasonable citizens, in accepting the limits of their epistemic abilities, should be ready to share political and epistemic authority with their fellow citizens and prevent any form of unwarranted epistemic deference that would endanger the very concept of agential autonomy. I have defended this second requirement as a fundamental feature of any model of democratic legitimacy that has the goal of addressing instances of structural injustice properly, along with the attempt to meet procedural requirements of legitimacy. Taking seriously the actual nonideal circumstances of democracy does not only allow us to investigate the epistemic dimension of the normative concept of political agency. It also problematizes the way in which power relationships affect the very possibility of fully enjoying the status of autonomous political agent. Once the epistemic dimension of political equality has been correctly illustrated, in fact, it is then possible to provide a compelling argument for a theory of political agency sensitive to power structures and relationships. I have shown that structurally entrenched power asymmetries not only cast doubts on the overall legitimacy of democratic settings and institutions, but also, more deeply, power asymmetries cause long-­ lasting detrimental effects on members of disadvantaged groups. I therefore argue in favor of a critical approach to correctly diagnosing conflictual dynamics over issues of social justice that feed upon structurally unjust social contexts that tend to provoke the disempowerment of members of disadvantaged groups, effectively reducing the chances of implementing the ideal of political equality within those political contexts. First, disadvantaged members of the polity may lack the political recognition that assures subjects to be fully heard and correctly recognized in public settings. Consequently, their opportunity to influence the democratic processes might be tarnished. Second, members of the polity who have been suffering forms of epistemic injustice are jeopardized in their ability to develop part of their personal identity, at least because they are constantly subjected to political disrespect, as they are not perceived as epistemically trustworthy members of the community. I have therefore argued that structural (unequal) circumstances very often provoke a disempowerment of members of disadvantaged groups and cause public questioning regarding their ability to meet the (moral and epistemic) standards necessary to be ascribed the status of fully autonomous agents. The book has reached a relevant conclusion, that is, showing that asymmetrical relations of power affect not just the actual legitimacy of democratic decisions and institutions, but shape how members of disadvantaged groups understand themselves as political actors, often

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endangering the adequate development of their practical and epistemic capacities. From this analysis, I have suggested that, when not adequately addressed, these structural injustices cause a secondary, institutional harm, namely, they put the legitimacy of the overall democratic system under pressure. In other words, whenever in democratic settings the most vulnerable members of the constituency are silenced or have fewer opportunities to impact collective decisions, then we can argue that the ideal of co-authorship has failed under nonideal circumstances, threatening the overall legitimacy of the political system under a relational account of political legitimacy. In the second part of the book, I have specifically focused on democratic interactions in nonideal circumstances. My main goal has been to defend a view according to which democratic procedures of decision-making should look at political agreements achieved primarily through forms of principled compromise. In defending this conclusion, I have shown that an overly idealized approach may lose track of actual decision-making processes (lack of guidance). Moreover, attempts to establish stable political agreements via consensus, through the appeal to deliberative standards that some individuals or groups have fewer opportunities than others to satisfy and to be fully included in, may engender exclusion and disrespectful treatment of certain groups (lack of inclusion). It follows that in order to actually respect members of democratic communities as practical and epistemic putative authorities, we ought to look for public procedures of conflict management that are compromise-oriented. Against this backdrop, I have argued, perhaps controversially, that compromise-oriented decisions can be more democratic than majoritarian-­decisions, because successful compromises are viewed as valid solutions to political stalemates precisely because the parties involved proved ready to yield reciprocal concessions while negotiating to find a collective solution to the conflict. In my proposal, the normative dimension of compromise-based agreements does not stem from a demand that citizens bracket their personal perspective or from the assumption that deliberation would lead agents to modify their preferences in favor of the common ground. In fact, compromise strategies allow citizens to face one another presenting their unrestrained preferences, since they are not required to look for common ground as in consensus-based procedures. I have maintained that the normative dimension of compromise agreements rests on the quality of the intersubjective exchange; it is a matter of relational justice, since it demands that the parties involved reciprocally respect one another. Realistically, each party tries to get as much as it can from the negotiation. Yet, we can distinguish between a principled, mutually respectful way to negotiate with others, and a dynamic in which power relations and manipulative actions gain privilege over justice-oriented reasons. Regarding this final point, in this book I have also introduced some cautionary remarks on the possibility that principled compromises can actually warrant an adequate response to structurally entrenched asymmetries of power and to stark differences in public visibility for members of different social groups. Observing contemporary democratic societies, it is evident that actual democratic processes tend to be biased in favor of privileged groups and elites, therefore putting pressure on the possibility of properly realizing principled forms of

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compromise. Hence, in line with the main goal of the book, that is, developing a paradigm of political legitimacy suitable for the actual circumstances of justice, I have argued that we should be aware of the unfair effects that political compromises can cast on members of unprivileged groups. Indeed, disadvantaged members of the polity often end up accepting unfair compromise, given the unbalanced negotiation power that characterizes individuals within the nonidealized circumstances of politics. The solution that I have envisaged to deal with these issues consists in claiming that compromise-based decision-making processes should satisfy some normative requirements (i.e. inclusiveness, pluralism, publicity) in order to be considered legitimate. I have also assumed that it is necessary to support wide institutional reforms for addressing structural forms of injustice that prevent many citizens from being treated (and recognizing themselves) as first-class citizens and as warranted members of the political community of epistemic trust. In order to push for this reform, it is fundamental to enrich public debates with an adequate analysis of the epistemic dimension of political agency as well as raise awareness about the corruptive ability of power asymmetries of causing political and epistemic discrimination. Ultimately, much work, as theorists and as citizens, remains to be done in order to work out a feasible – and yet philosophically satisfactory – justificatory strategy for granting legitimacy to democratic decisions under circumstances of pervasive disagreement and unrestrained conflict. It seems trivial to observe that we are still far from establishing democratic settings in which marginalization, oppression and epistemic privileges granted to dominant groups are fought against adequately and consistently. I hope to have shown that one relevant way in which the liberal ideal of democratic legitimacy is profoundly betrayed is through structural forms of injustice, since these injustices are detrimental to the very ideal of political equality, leaving some members of the polity powerless and burdened with the necessity to fight against constant misrecognition of their identities, and agential capacities. Yet, my optimistic take in this book has been to hint at a path forward for amending some inherent tensions within the liberal paradigm, while defending a relational version of political liberalism that rests on the ideal of co-authorship. According to my version of relational liberalism, democratic legitimacy depends upon deliberative processes that should grant the ascription of the status of reflexive agency to every member of the constituency and that should assure that each citizen treats other citizens on an equal standing − both morally and epistemically. A fundamental democratic commitment requires all of us to accept an ecumenical collaboration among co-citizens for repairing the cracked boat of democracy on the open sea, everyone doing their part, while keeping in mind the normative compass provided by the loose liberal framework of general ideals, evaluative standards, and principles.

Index

A Accessibility requirement, 200–201 Appraisal of evidence, 87, 93–95, 110, 113 B Bottom-up legitimation, 162–163, 167, 168 Brink, David, 55–59, 61, 79 Brown v. Board of Education, 264, 269 Burdens of judgment, 99–100, 116–117 C Ceva, Emanuela, 125 Circumstances of justice, 14, 16 nonideal circumstances of justice, 110, 112, 137 Circumstances of justice, 14, 16 Cirinnà Bill on civil unions, 130, 273–277 Coherentism, 17, 35, 56–62, 64, 65, 68, 70, 73–77, 79, 87, 89, 91, 92, 96, 98, 150–151, 159, 168 Concept negotiation, 250, 253–254, 275 Conciliatory view, 106–109 Contextualism, 31, 50, 151, 162, 163, 186 Convergence, 9, 146–147, 199–201 Critical perspective, 16–17, 239–242, 254 Cultural domination, 251 D D’Agostino, Fred, 7, 9, 31, 146, 181–182, 190, 195, 204 Daniels, Norman, 72–76

Deliberation, 45–48, 70–71, 117–119 deliberation among real-world citizens, 166–168, 226–227 deliberative reading of public reason, 176 deliberative schizophrenia, 45 discursive principle, 35 Democratic ethos, 230–231 Desirability, 34, 43–44, 49, 51 Dilemma of liberalism, 5–8, 28, 37, 197 Disagreement, 3–5, 9, 10, 12, 14, 15, 18, 19, 25–29, 36, 37, 42–48, 52–54, 60, 61, 69, 76, 86, 115, 117–120, 123, 127, 136–143, 146–150, 152, 154–156, 158–160, 165, 166, 168, 175, 186–188, 190, 194, 196, 197, 200, 202, 206, 212, 214, 216–224, 229, 232, 233, 235, 268, 283–285, 287 epistemology of disagreement, 87, 101, 106, 109 reasonable disagreement, 99–113 Doxastic presupposition, 87–89, 112 Duty of civility, 173–175, 178 Dworkin, Ronald, 27–30 E Epistemic authority, 102–106 putative epistemic authority, 118–119 Epistemic deference, 104, 122, 191, 197, 206, 218 no-deference constraint, 5, 126 Epistemic domination, 238 Epistemic justice, 235, 241 Epistemic peer, 104–110

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290 F Fallibilism, 91–92 fallibilist counterfactual clause, 113, 193 Feasibility, 13, 14, 32, 34, 43–44 Fourteenth Amendment of the U.S. Constitution, 267–268 Foundationalism, 53–55 Freestanding justification, 30–31, 39–42, 152–153 G Galeotti, Anna Elisabetta, 252–253, 260 Gaus, Gerald, 179, 188, 190–195, 197, 202–205 Gettier problem, 89–91 Goodridge v. Mass. Department of Public Health, 266 Google Spain v AEPD and Mario Costeja González, 264 H Habermas, Jürgen, 34–37 I Ideal and nonideal theory, 14–17, 135–136, 149, 165, 229 Ideal of co-authorship, 3, 18, 20, 103–106, 110–111, 119, 121–122, 157, 178, 191, 229, 231–234, 285–287 Inclusion, 253–254, 257, 271 Institutional reform, 15, 239–240, 262 Intellectual modesty, 111–114, 117, 128, 141, 175, 180, 191–193, 218 Intelligibility requirement, 199–201 J Judicial review, 204, 262–269 Justificatory constituency, 7, 10, 48, 137–139, 141, 157, 198 Justificatory liberalism, 18, 187–207 L Liberal legitimacy, 2–20, 53, 63, 100, 102, 119, 127, 139, 147, 157, 172, 176–178, 183, 184, 186–188, 195–197, 202, 203, 215, 220, 222, 231, 234, 240, 261, 281, 282

Index Loose liberal framework, 19, 145, 147, 148, 152, 155, 163, 188, 202, 204, 207, 212, 215, 287 liberalism-frame and liberalism painting, 135–136, 167–168, 283 Loving v. Virginia, 267 M Maffettone, Sebastiano, 8, 135, 162–163 Marginalized groups, 234, 240, 241 Marriage equality, 19, 248, 249, 251–253, 257–269, 274–277 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 271–273 May, Simon Cǎbulea, 223–225, 228, 231, 234 McKinnon, Catriona, 11–12 Modest epistemic paradigm, 87–90, 92, 95–96, 110, 113 Modus vivendi, 25, 32, 165, 213, 217, 225 stability as modus vivendi, 115 Motivation, 11–16, 28–32, 77, 144, 164 motivational impasse, 44, 154 N Normative acceptability, 5–6, 11, 37, 125–126, 155, 182–184, 191, 195–197 O Obergefell v. Hodges, 266–268, 272 Open justification, 192–195, 201 Overlapping consensus, 24, 30–33, 35–37, 41–46, 48, 62, 100, 135, 143–148, 150–156, 161, 166–168, 172 P Peter, Fabienne, 86, 108–110, 119 Philosophical-normative desideratum, 6, 12, 19, 168 Pluralism, 12, 25–26, 99, 137–139 descriptive pluralism, 94 Political epistemology, 24, 27, 101–114 Political liberalism, 3, 6, 17, 18, 20, 24, 27, 30, 32–34, 36, 38, 40–52, 62, 63, 69, 71, 73, 74, 86, 97, 100, 134, 137–150, 152, 154, 156–159, 165–168, 173, 178, 181, 182, 185–189, 195, 196, 201, 203, 204, 213, 215, 282, 283, 287 Positional goods, 254

Index Power, 234–235, 238–239 positional power, 250–257 powerless citizens, 236–237, 241 Practice-dependent approach, 162, 204 Pragmatic compromise, 223–225 Principled compromise, 18, 19, 214, 225–230, 238, 240, 241, 248, 258, 276, 286 Proceduralism, 103–104, 119 Public culture, 18, 31, 34, 38, 41, 50, 142–144, 146, 151–153, 155, 162, 167 Public justification, 25–27, 31, 41, 46–47, 60, 74, 125, 127, 145–146, 159, 172, 176, 182–188, 191, 194–198, 202–204, 259 Public reason, 18, 25, 38, 41, 46, 114, 116–118, 127, 144, 147, 153, 154, 159, 166, 167, 172–181, 185, 190, 196, 198, 205, 207, 226, 241, 263 adjudicating function of public reason, 184, 204–207, 219, 222 Q Quong, Jonathan, 44, 137–141, 144–147, 173 R Rationality, 27, 34, 115 Rawls, John, 24–27, 30–33, 37–41, 150–156 Raz, Joseph, 49–52 Realist desideratum, 6, 13, 19, 168 Reasonable disagreement, 93–94, 99–113 Reasonableness, 17, 18, 33, 36, 48, 87, 101, 106, 114–128, 140, 141, 153, 156, 158, 159, 161, 164, 175, 178, 183, 188, 193, 212, 213, 232, 233, 237, 239, 240, 282 Reflexive agency, 102, 111, 118, 199 Reflective agreement, 160–168, 175, 215, 222, 264 Reflective equilibrium, 17, 35, 40, 41, 43, 57, 62–80, 143, 151–156, 160, 204, 263 narrow and wide reflective equilibrium, 72–77 Relational justice, 125, 219, 231, 286 Relational liberalism, 3, 20, 135, 156–168, 187, 188, 281, 287 Relational vulnerability, 236–237 Respect, 102–104, 186, 231–232 appraisal respect, 120

291 misrecognition, 252, 255–257 opacity respect, 119–123 recognition respect, 120, 253–257 social bases of self-respect, 236 Responsiveness, 9, 103, 119, 178 Robustness, 9–10, 206–207 S Sincerity requirement, 147, 178–181 Stability for the right reasons, 6, 7, 25, 26, 28, 30, 32, 39, 41, 42, 47, 49, 52, 63, 115, 183 Steadfast view, 107–109 Structural injustices, 16, 231, 234–237, 285, 286 Symbolic public space, 248, 250–257, 275 symbolic harm, 273 T Three justificatory stages, 39–48 U Unreasonableness, 185–186 V Vallier, Kevin, 7, 190, 192, 198–202 Voluntaristic dimension of political legitimacy, 5, 177, 178, 182, 184, 186, 197, 201, 220–222 W Wall, Steven, 182–187, 191, 192 Weinstock, Daniel, 225–230, 233, 237, 239 Winner-takes-all-democracy, 229–230, 239 Y Young, Iris Marion, 235–236, 251 Z Zablocki v. Redhail, 267 Zan Bill, 276